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V.'i'^ 



DECISIONS 



or THK 



SUPERINTENDENT OF COMMON SCHOOLS 



STATE OF NEW-YORK. ^ : 



SELECTED AND ARRANGED 



BY JOHN A. DIX, SUPERINTENDENT. 



TOGETUER WITH 

THE LAWS RELATING TO COMMON SCHOOLS, AND THE FORMS AND REGIFLATIONS 
PRESCRIBED FOR THEIR GOVERNMENT. 



PUBLISHED BY AUTHORITY OF THE LEGISLATURE. 



ALBANY: 

FRINTED KY iKOSWELL, VAN PENTHUVSEN & BURT- 

3837. 







' ' /J 



[Entered according to Act of Congress, in the year one thousand eight hun- 
dred and thirty-seven, by John A. Dix, in the Clerk's office of the Dis- 
trict Court of the Northern District of New-York.] 



PREFACE. 



The decisions of the Superintendent of Common Schools con- 
tained in this volume were arranged and prepared for publica- 
tion under circumstances which are explained in a communica- 
tion to the legislature, of which the following is an extract : 

"STATE OF NEW-YORK,) 

Secretary's Office, 5 Mbany, 4th January, 1837. 

"TO THE LEGISLATURE. 

"The Superintendent of Common Schools begs leave to state, 
that he has collected and arranged in a form similar to that in 
which cases decided in the Supreme Court are reported, the de- 
cisions which have been pronounced by his predecessor and 
himself in matters of appeal brought before them for adjudica- 
tion. This collection is designed to embrace every important 
case which has been decided by the Superintendent; and for the 
purpose of rendering the decisions more serviceable as precedents, 
each one is accompanied by a brief statement of the principle or 
rule which it establishes, or what may with greater technical 
propriety be denominated a note of the case, and with a suc- 
cinct recital of the facts, where such recital is essential to a clear 
comprehension of the subject matter of adjudication. A very 
large proportion of the cases reported consists of opinions given 
upon ex jjarte statements ; but as the facts accompany the opi- 
nions, they will show as clearly as decisions pronounced in mat- 
ters of appeal, what would be the issue of an adjudication by 
the Superintendent in a similar case, and they will therefore have 
the same utility as precedents. 



IV PREFACE. 

"The decisions of the Superintendent have ahvays been divest- 
ed, as far as possible, of technicalities. The aim has been to 
render them so plain that there should be no room for misappre- 
hension, even with those persons who are wholly unacquainted 
with legal maxims or forms. They have been reported with a 
strict regard to the same object ; and if they have the recommen- 
dation of clearness and simplicity, all that was in view will have 
been attained. 

" If each school district were to be put in possession of a copy 
[of the decisions,] it is believed that applications to the Superin- 
tendent for his opinion would be less frequent, and that appeals 
would often be prevented in cases in which they are now made ; 
as persons thinking themselves aggrieved, would almost always 
be able to find among the reported cases, one so nearly similar 
to their own, as to remove all doubt as to the result in the event 
of an adjudication by the Superintendent. It would, therefore, 
be reasonable to expect that the inhabitants of school districts 
would in numerous instances adjust by amicable arrangement 
matters of difference, which, for want of such a guide, would 
have been brought before him for decision. Thus not only 
would the delay, trouble and expense of a controversy be avoid- 
ed, but there would be no incentive to that feeling of hostility 
which is too often engendered during the prosecution of appeals, 
and which frequently continues to disturb the harmony of school 
districts and to shed an unhappy influence upon the schools 
themselves, long after the subject matter of contention has been 
disposed of. The advantage to the Superintendent of having it 
in his power to refer disputants to a decision applicable to the 
matter of controversy between them, would be great ; for, in case 
of an application for his opinion, he could, by a mere reference 
to a reported case, avoid the necessity of entering into the same 
explanations, as he is now compelled to do in a multitude of 
cases, where the facts and the rule applicable to them are the 
same. 

" There would be no difficulty in publishing the work at pri- 
vate cost, if the Legislature should not think proper to authorize 



PREFACE, V 

its publication at the expense of the State. In the former case, 
the benefits to be expected from it would be but partial. The 
publisher would endeavor to realize as large a profit as possible; 
and the price would probably be such that its circulation would 
be comparatively limited. The work has been voluntarily un- 
dertaken and executed by the Superintendent, with the sole 
view of rendering the common schools a service. He has con- 
sidered his time, as well as the materials on which he has been 
employed, as the property of the public ; and the work is respect- 
fully presented to the Legislature, with the desire that it may 
be disposed of, should it be deemed worthy of any action on 
their part, in such manner as they may deem most useful and 
proper. 

'aOHN A. DIX." 

This communication was referred to the committee of the 
Assembly on colleges, academies and common schools, who re- 
ported a bill, which passed both houses and became a law, and 
of which the following is the first section : 

AN ACT concerning Common Schools. 

Passed May 1, 1837. 

The People of the State of New- York, represented in /Se- 
nate and Assembly, do enact as follows : 

^ 1. The Superintendent of common schools is directed to 
publish, for the use of the common schools in this state, the se- 
veral acts now in force relating thereto, together with such de- 
cisions as may have been made by said Superintendent, and his 
predecessors in office, in matters of appeal brought before them 
for adjudication: and he shall also furnish one copy to each 
town clerk for the use of the commissioners and inspectors of 
common schools. 

The office of Superintendent of Common Schools was created 
by chap. 242 of the laws of 1812, and Gideon Hawley was ap- 
pointed to fill it. He continued in office until February, 1821, 
when Welcome Esleeck was appointed in his place. In April of 
the same year, the office was discontinued as a distinct depart- 



VI , PREFACE. 

ment, and the duties were assigned to the Secretary of State, 
who has since that time been ex officio the Superintendent of 
the Common Schools. At the time of this change, John Van 
Ness Yates was Secretary of State, 

During the administration of the department by Mr. Hawley, 
the Superintendent had no appellate power with respect to the 
determination of controversies arising in school districts. This 
power was first given while Mr. Yates was in office. Although 
numerous decisions were made by the latter, copies were not pre- 
served in his office. His practice was to send them to be recorded 
by the commissioners of common schools of the towns, or the 
trustees of the districts, in which the cases arose. Abstracts of 
some of them were appended to a new edition of the School 
Laws which he was directed to publish in the year 1822 ; and 
a reference to a few of them will be found in this volume, as 
well as to the exposition by Mr. Hawley of the early laws relat- 
ing to the common schools. 

In 1826, Azariah C. Flagg was appointed Secretary of State, 
and from the commencement of his administration of the com- 
mon school department down to the present time, a continuous 
record of decisions has been preserved. 

Mr. Flagg continued in office until January, 1833, when 
John A. Dix was appointed in his place ; and for the reasons be- 
fore assigned, this volume contains only the decisions pronounc- 
ed by these two officers. 

Should this publication have the effect of diminishing the num- 
ber of controversies in school districts, or lead to an amicable set- 
tlement of thena before they shall have ripened into feuds, and 
thus contribute to the preservation of that spirit of harmony on 
which the social comfort of parents, and the intellectual im- 
provement of their children are alike dependent, the undersign- 
ed will be ampl)?^ repaid for the labor expended in preparing the 
decisions for the press. 

JOHN A. DIX. 

Albany^ August 1, 1837. 



ERRATA. 



'age 1. 


1st line 


" 14. 


10th " 


" 16. 


15tl) ' 


" 18. 


9th ' 


'' 28. 


9th " 


" 69. 


14th " 


" 127. 


5th " 


" 142. 


14th ' 


" 274. 


19th ' 


" 334. 


11th ' 



1st line from bottom, for 42 read 43. 



" strike out marks of quotation. 

" between " </ie" and "owner" insert nmi-resident. 

" for King read Ri?ig. 

" after "others" insert 18 Johnso?!, 351, 
top, for "their" lead its. 
top, for "moneys" read "money." 
bottom, for " ojicei-s" read "offices." 

" after "each" insert other. 

" for "there" read their. 



DIRECTIONS TO THE COMMISSIONERS OP 
COMMON SCHOOLS. 

Tlie Commissioners of Common Schools, on receiving the 
copies of this work, which will be sent to them for distribution, 
will deposite one copy with the Town Clerk for the use of the 
Commissioners and Inspectors of Common Schools of the town ; 
and they will distribute the residue among the school districts in 
their respective towns, giving one copy to each district. Before 
they deliver a copy to a joint district, they must satisfy them- 
selves that it has not already received one from the Commissioners 
of the other town or towns in which such district partly lies. 
The work has been printed at great expense to the state ; and the 
utmost care must, therefore, be taken in distributing the copies 
according to the intention of the law. It is hoped that equal 
care will be taken in preserving them for the use of the towns 
and districts to which they are furnished. If after all the dis- 
tricts in a town are supplied, there should be surplus copies re- 
maining on the hands of the Commissioners, they should ascer- 
tain whether there is not a deficiency in some adjacent town, 
and in such a case the surplus copies should be delivered to the 
Commissioners of the town in which such deficiency exists. — 
When a new district shall be hereafter created, it will be fur- 
nished with a copy by the Superintendent of Common Schools, 
on a certificate from the Commissioners that such district was 
formed subsequently to the distribution of the work, and that it 
has not received a copy. 



CASES 

DECIDED BY THH 

SUPERINTENDENT OF COMMON SCHOOLS 

OF THE 

STATE OF NEW-YORK, 

FROM 1826 TO 1837, INCLUSIVE. 



The Commissioners of Common Schools of the town 
of Lorraine, ex parte. 

The formation of a new district not having been recorded at the time it was 
formed, on application to the Superintendent of Common Schools, the com- 
missioners will be authorized to enter their proceedings of record. 

Oil the representation of two of the commissioners of common 
schools of the town of Lorraine, it appeared that district No. 11 
in said town was formed on the petition of the freeholders and 
inhabitants of districts No. 3 and 7, and that the order of the 
commissioners was left with the town. clerk, who was requested 
to record the same on the i5th Dec. 1825. By the neglect of 
the town clerk the order was not recorded. 

By A. C. Flagg, March 29, 1826. Ordered, that the acts 
and doings of the commissioners of common schools of the town 
of Lorraine in the organization of district No. 11, be entered of 
record, in conformity to the 11th section of the act entitled " An 
act for the support of common schools," passed April 12, 1819.* 

The Commissioners of Common Schools of the town 
of Starkey, ex parte. 

The formation of a new town does not affect the organization of school districts. 
A district intersected by the line of division between the new town and the 
town from which it is talcen, becomes a joint district. 

By an act passed April 6th, 1824, a part of the town of Read- 
ing was set off and erected into a new town by the name of 
Starkey. The first town meeting was held in Starkey in March, 

* Sec. 42, page 474, vol. 1, R. S. 
1 



2 CASES DECIDED BY THE 

and in Reading in April, 1826. By the division referred to, school 
districts No. 7 and 8, were intersected by the line dividing the 
two towns, and the commissioners of common schools of the town 
of Reading applied to the Superintendent to be instructed as to 
the effect of the division upon the above mentioned districts. 

By A. C. Flagg, May 20, 1826. The statute relating to 
common schools, authorizes the organization of school districts 
without reference to town or county lines. The alteration of a 
town line, therefore, does not, as a matter of course, break up or 
disorganize a school district. And where the line of a new town 
runs through a school distiict, the commissioners of the old and 
new town should regard a district thus intersected by a town Mne, 
as a joint district. The law seems to contemplate that school 
districts should be formed with a view of accommodating neigh 
borhoods, without regarding the divisions into towns and coun- 
ties, except where the inhabitants would be as well accommoda- 
ted by regarding such lines. It is not a matter of any particular 
consequence to the inhabitants of a district, whether or not an 
imaginary town line runs through their district. But it is a sub- 
ject of deep interest to them that their school district should not 
be disarranged; because it is by keeping up their organization, 
and complying with all the requirements of the law, that the 
trustees are enabled to make such report as will entitle the dis- 
trict to the public money. 

The same steps must be taken to reorganize or dissolve dis- 
tricts composed of parts of both towns, as if those districts had 
been formed by the commissioners of both towns after the divi- 
sion of the town of Reading. 

The Trustees of School District No. 1 in the town 
of Lansingburgh, ex parte. 

An error or omission in the assessment roll of the town may be corrected or snp- 
plied by the trustees of a school district in making out a tax-iist. 

In assessing a tax to be levied for the purpose of erecting a 
school-house in district No. 1, in the town of Lansingburgh, the 
trustees beheving that the valuation of some of its taxable pro- 
perty by the town assessors was erroneous, but doubting their 
power to correct the assessment roll, addressed to the Superin- 
tendent the following question, viz : — "Are the trustees of a 
school district bound by valuations put upon property by the town 
assessors, or may they exercise a discretion and vary the valua- 
tions accordingly ?" 

By A. C. Flagg, Ju7ie 5, 1826. The law provides that the 
valuations "shall be ascertained and taken from the then last 
assessment roll of the town, so far as the same can be ascertain- 
ed and taken therefrom." Where it cannot be thus ascertained. 



SUPERINTENDENT OF COMMON SCHOOLS. o 

the trustees can " inquire into and ascertain the same from the 
best evidence in their power." Sec. 25, act of April 12, 1819.* 
Where there is a known error in the town assessment, the 
trustees may correct it in the district assessment. For instance ; 
if a resident of the district should purchase or sell a lot after the 
town assessment had been made, the trustees would be re- 
<]uired to vary the district assessment accordingly. But where 
there is no change in the property of the individual, and the va- 
luation is a matter of opinion merely, the trustees must be guid- 
ed by the assessment roll of the town, even though in their judg- 
ment a farm be worth more or less than the estimate put upon 
it by the town assessors. 

Edmund Whittier against the inhabitants of school 
district No. 11 in the town of Ogden. 

An appeal to the Superintendent will not be entertained when the point at issue 
has been settled by an adjudication upon the same case in a court of compe- 
tent jurisdiction. 

This was an appeal from the proceedings of a meeting of the 
inhabitants of school district No. 11 in the town of Ogden, at 
which a tax of $250 was voted to build a school-house. The 
facts are fully set forth in the decision of the Sj^perintendent. 

By A. C. Flagg, Jiine 23, 1826. It is alleged that the vote 
imposing the tax was carried by the admission on the part of 
the moderator of tlte illegal votes of William Hill and Alsen 
Smith. 

The appellant has presented a number of affidavits to show 
that Hill and Smith, in the opinion of those who testify, were 
not legal voters. The affidavits set forth generally that the per- 
sons testifying have no knowledge that Hill and Smith were le- 
gal voters, and from their situation and circumstances do not be- 
lieve they were. 

On the other side, the record of proceedings before a magis- 
trate is produced and duly authenticated, by which it is shown 
that Hill and Smith were prosecuted for having voted, without 
l>eing entitled to vote by law, and that on the trial of the cause 
it appeared that they were legal voters at the time of the meet- 
uig, from the proceedings of which the appeal is brought. In 
addition to this. Smith and Hill testify that they were at the time 
of the meeting worth fifty dollars in taxable property. 

The Superintendent feels bound to recognize the decision of 
the court as having settled the point that Hill and Smith were 
legal voters. This being the only point at issue, it is ordered, 
that the appeal in this case be dismissed. 

• Sec. 79 and 80, pages 482 and 483, vol. 1, R. S. 



4 CASES DECIDED BY THE 

Zeno Allen and others against the Trustees of school 
district No. 1 in the town of Hounsfield. 

If the children residing in a school district are too nitmerous to be insti-ucted iu 
one school, the trustees may hire one or more additional teachers and the ne- 
cessary rooms for the accommodation of the additional schools, when authori- 
zed by a vote of the inhabitarits; but the compensation of the teachers must 
be provided for in the same manner as though only one instructer had been 
employed. 

The daily opinions of the Superintendent, given in reply to abstract questions 
and ex parte representations, are not to be classed among those decisions 
which the law declares to be final. 

This appeal was brought from the decision of the majority of 
the trustees of school district No. 1 in the town of Hounsfield, 
under the following circumstances : 

The inhabitants of the district, which was composed of the 
village of Sackett's Harbor, finding the number of children too 
great for one school, and disagreeing as to the division of the 
district, voted, at a meeting held on the 8th of January, 1824, 
that the trustees should employ one or more additional teachers, 
and hire separate rooms for them, and voted a tax to pay the 
rent. They also voted that the public money should be divided 
among the teachers in proportion to the number of scholars 
taught in each school. These proceedings were sent to the Su- 
perintendent, (Jo^n V. N. Yates) who sanctioned and confirmed 
them, and ordered them, together with his approval, to be re- 
corded in the town clerk's books. 

In the fall of 1824, the trustees hired two teachers and a room 
for the additional school, and gave the inhabitants permission to 
send to either, as they might choose. The result was that the 
number of scholars in one of the schools was nearly double the 
number in the other. This circumstance gave rise to a differ- 
ence of opinion among the trustees : two of them were in favor 
of applying the public money equally to the compensation of the 
teachers, and assessing the balance on the patrons of the schools 
in proportion to the number of days sent to either or both. The 
other trustee objected to that mode of compensating the teachers, 
and obtained an opinion from the Superintendent in favor of his 
own, which was in conformity to the vote of the inhabitants of 
the district on the 8th Jan. 1824. Being overruled by a majo- 
rity of the trustees, an appeal was brought in the spring of 1826, 
from the determination of the latter to provide for the payment 
of the wages of the two teachers without regard to the number 
of scholars taught by each. 

By A. C. Flagg, June 20, 1826. In whatever light this 
question is taken, I conceive that district No. 1 must be consi- 
dered one district under the control of one set of trustees, and 
that all the rules for the government of distinct districts are ap- 
plicable to this. The law in providing for the distribution of the 



SUPERINTENDENT OF COMMON SCHOOLS. 5 

public money, recognizes certain geographical divisions ; such as 
counties, towns and districts. In the 5th section of the act of 
1819,* the Superintendent is required " to apportion the said surn 
of money among the several counties of this state, and the several 
shares of such counties among the several towns and cities there- 
of," in the ratio of the population "of such counties and towns or 
cities." The 15th section requires the commissioners to apportion 
the public money received by them -'according and in proportion 
to the number of children between 5 and 15," &c.t And the 
26th section, taken in connexion with the 25th, provides that 
the trustees shall " agree with and employ all teachers to be em- 
ployed" in the district ; and to '• pay the wages of such teachers 
out of the moneys which shall come into their hands," &,c., and 
•'■ the residue of the wages of such teachers shall be collected by 
the trustees" by a tax which is to be assessed upon the inhabi- 
tants of the district, " according to the number of days for whicli 
each" person " shall be liable to pay for instruction," <fcc.+ Mr. 
Hawley, wlio drafted the law of 1819, in his exposition of this 
part of the act, says : '• All who reside in the district, and attend 
the school, as they may of common right, must necessarily par- 
ticipate equally in the benefit of the public money ; for as it 
must be applied to the payment of teachers' wages generally, 
without reference to any particular scholars, it will reduce the 
amount which would otherwise be payable by each employer, 
alike to all. If a district be formed out of two or more adjoining 
towns, and the trustees receive money from each town, they 
must nevertheless consider it as one common fund, ajid apply it 
for the benefit of all alike, in the same manner as if they icere 
one entire district in one toivn.^^ 

In authorizing the Superintendent, the commissioners and the 
trustees to apportion and distribute the public money, the law 
recognizes the principle of graduating the apportionment accord- 
ing to the population and number of scholars, and equally among 
the different individuals of the same district. 

It is the duty of the trustees to " employ all teachers" and to 
furnish such an amount of tuition as the necessities of the dis- 
trict require ; and they are bound to furnish to each individual 
of the same district tuition at the same rate. Three teachers 
were hired and the trustees assured the inhabitants that the price 
of tuition should be alike to all. But by applying the rule con- 
tended for in this case, a person who has sent six children to 
Shepard would have to pay $14.46, while a person sending the 
same number to Chaplin Avould have to pay only $4 . 08 ; and 

• Sec. 3, page 467, vol. 1, R. S., as amended by the act of April 20, 1880, 
ohap. 320 of the laws of that year, sec. 6 and 6. 
t Sub. 6 of sec. 20, page 470, vol. 1, R. S. 
t Sub. 7 and 8 of sec. 75, page 481, vol. 1, R. S. 



b CASES DECIDED BY THE 

ail in the same district. There is no authority in the law for 
such an unequal distribution, and I conceive that it is irreconci- 
lable with the principles of equity. What equivalent is given 
to the patrons of Shepard's school to warrant this great dispro- 
}X)rtion in the assessment ? None, which is entitled to conside- 
ration. Tlie patrons of the small school are not formed into a. 
separate district by their own request, and designated by name 
as belonging to one school, nor are they bounded by the designa- 
tion of certain geographical lines on account of any local accom- 
modation to their children. But the taxable strength of their 
sub-district is to be settled by chance ; subject to be affected by 
the inclination or caprice of others. They continued in good 
faith in the school, as requested by the trustees, relying upon the 
assurance that the charge for tuition would be ahke upon all the 
members of district No. 1. Their neighbors changed to the 
other schools, and thus left the parents of thirty scholars, who 
had no volition in the case, to pay as much for tuition as the pa- 
rents of a hundred scholars ; and all this under the authority of 
the same trustees. This view of the subject is forcibly illustra- 
ted by the fact that some members of the district actually sent 
to all three of the schools. And here it might be well to en- 
quire what rule the trustees should adopt in making out the as- 
sessment against a person who should have sent to all the 
schools : Should it be 8f mills per day for the time sent to Cha- 
plin; 2i cents for the time sent to Everett; and 3 cents for the 
time sent to Shepard? In this way, they might require a diffe- 
rent seal© of assessment for almost every person in the districts 
As to the vote of the district it is only necessary to say that a 
tax voted by a district meeting must be an equal tax, according 
to property, upon all the inhabitants of the district. The reso- 
lution passed in Jan., 1824, contemplated a division of the pub- 
lic money "according to the number of scholars taught in each 
school." It was expected, no doubt, by the meeting, that the 
schools would be equally attended, and consequently the money 
equally apportioned. It is not to be inferred from the terms of 
this resolution that the meeting could have contemplated an in- 
equality in the distribution of the public money or in the appor- 
tionment of the tax. This inequality was caused by those w1k> 
disregarded the efforts of the trustees in their attempt to equalize 
the schools. But the present trustees are protected by a subse- 
quent vote of a meeting, which is, " That the teachers' wages 
be paid by a tax on the scholar, after the public money is ex- 
pended." This was a vote taken at a meeting of the whole- 
district ; it must have had reference to all the inhabitants of that 
district taken collectively, and to the aggregate amount of tui- 
tion required for district No. 1. In collecting the teachers' wa- 
ges " by a tax on the scholar," it was the obvious duty of the 



SUPERINTENDENT OF COMMON SCHOOLS. 7 

trustees to assess each person according to the number of scho- 
lars sent by him ; that is, in proportion to the amount of tuition 
which had been received by his children, having relation to all 
the other inhabitants of the district. It could not have had re- 
ference to the number of scholars which might by chance be 
sent to one or the other of the three schools. 

The opinion given by the Superintendent to the trustees of 
1824, could only apply to that special case. It could not be con- 
sidered permanent in its character, on the ground that it was 
the Superintendent's construction of the school act ; for a diffe- 
rent rule is established in that act in regard to taxes and distri- 
buting the public money in districts. And the appellants can- 
not claim an adherence to its principles as a decision under the 
Tth section of the act of 1822. That act provides that persons 
aggrieved by decisions of the trustees, <fec., may appeal to the 
Superintendent, " whose decision thereon shall he final." The 
fact of establishing a tribunal from which there is no appeal, 
does not consequently give the Superintendent unlimited juris- 
diction. So far from this it ought to be an admonition to exer- 
cise this authority with great caution and circumspection, and 
not until after a hearing of both parties, and an examination of 
all the facts in the case. In this case, the opinion of the Super- 
intendent appears to have been given on an ex parte represen- 
tation, and must be considered merely advisory, and apphcable 
to that special case, based upon the representations made. It is 
only in cases of appeal that the decisions of the Superintendent 
are declared by the law to be final; and in such cases the 
law pre-supposes that there will be a hearing of both sides 
and a full investigation of the rights of both parties, preparato- 
ry to making such decision. The daily opinions of the Super- 
intendent given in reply to abstract questions and ex parte re- 
presentations, cannot be classed among those decisions alluded to 
in the act of 1822, and which are declared to be final. It would 
be unjust to allow the opinions thus given, in reply to abstract 
questions, to affect the rights of individuals beyond the cases in 
^vhich they were specially given. 

If it is contended that those who sent to the large school re- 
lied upon the order of the Superintendent, it might be asked in 
what respect they have injustice done them? According to the 
decision of a major part of the trustees, they are called upon to 
pay only an equal proportion of the expense of the tuition which 
was requisite for the first district. Is this a hardship ? What 
entitles them to exemption ? The only reason urged by the ap- 
pellants is, that their children suffered the inconvenience of at- 
tending a crowded school. But this was a matter of choice with 
themselves ; and if they sent an unreasonable number of scho- 
lars to the school, against the wishes of the trustees, they can- 
not expect to take advantage of their own wrong. 



O CASES DECIDED BY THE 

It is a well settled principle that taxation to be just must be 
equal. It is inequality which renders taxes intolerable and fur- 
nishes a good cause of complaint. There is no authority given 
in the school act, or in the general act for the assessment and 
collection of taxes, for making any other than an equal assess- 
ment, graduated according to the property and ability to pay of 
each individual. This equality is not only kept up among the 
different persons of the same town, but by the 19th section of 
the act for the assessment and collection of taxes, boards of su- 
pervisors are required to compare the rolls of the different towns, 
" to ascertain whether the valuations in one town bear a just re- 
lation or proportion to the valuations in all the towns in the 
county." I am unable to discover any good reason which vv'ould 
authorize a departure in relation to any of the citizens of dis- 
trict No. 1 from this equitable principle which is recognized in all 
our systems of taxation. 

After a full consideration of the appeal of Zeno Allen, one of 
the trustees of district No. 1 in Hounsfield, and Hiram Steele, 
and others, inhabitants of said district, and after a hearing of 
the evidences produced by Messrs. Canfield and Jenison, two 
of the trustees of said district, as well as of those produced by 
the said appellants, the Superintendent of Common Schools de- 
cides, that the appeal of the said Zeno AUen and others, be dis- 
missed, and that the major part of the trustees of district No. 1 
in Hounsfield in the county of Jefferson, have acted correctly in 
the distribution of school money and in the assessment for the 
collection of the residue of teachers' wages in said district, and 
that the collector of district No. 1 will proceed to collect said as- 
sessment under the direction of the trustees, or a major part of 
them, according to law. 

The Trustees of school district No. — in the town of 
Greece, ex parte. 

Land purchased after a tax is voted, but before the tax-list is made out, must b« 

assessed to the purchaser if he resides in the district. 
A tenement leased for a school-house cannot be taxed. 
Vessels, canal-boats, &c., are not exempt from taxation. 

This was an application to the Superintendent to decide cer- 
tain questions, which arose among the trustees of district No. — 
in the town of Greece, in assessing a tax voted by the inhabi- 
tants of the district for the purpose of leasing and repairing a 
tenement to be used as a school-house. The questions present- 
ed by the trustees are subjoined, with the answers of A. C. 
Flagg annexed, March 30, 1826. 

(Question 1. Can land, which was purchased after a tax was 
voted, and before the tax-list was made out, and which was tax- 



SUPERINTENDENT OF COMMON SCHOOLS. 9 

ed as non-resident property in the last town assessment, be as- 
sessed to the purchaser, he being a resident of the district ? 

Answer. Land purchased after a tax is voted, but before the 
tax-hst is made out, may be assessed to the purchaser, he being 
a resident of the district, notwithstanding it may have been as- 
sessed as non-resident land in the last town assessment. The 
25th section of the act of 1819, requires the trustees to make out 
a rate bill or tax-list of " all the taxable inhabitants residing in 
their district, at the time of tnakwg out such rate bill or tax- 
list"* &c., " according and in proportion to the vahiations of the 
taxable property which shall be owned or possessed by them at 
the time last aforesaid,"^ which is the time when the list is 
made out. They are required to refer to the town assessment 
for the valuations of the property, but not for a list of the own- 
ers or occupants ; and the town assessment is not obligatory 
on them even for the valuations, only so tar as it is a correct. 
guide. 

(Question 2. The house, which has been leased, is it taxable 
to the lessor ? 

Answer. If the school-house is meant, it cannot be taxed. 
The 3d section of the "Act for the assessment and collection of 
taxes," passed April 23d, 1823,1 in the exemptions from taxe^, 
includes school-houses and the lands upon which they stand. 

Question 3. Are vessels, canal-boats, (fcc, a species of personal 
property liable to taxation in town or district assessments ? 

Answer. Vessels, canal-boats, &-c., are not exempted by the 
, tax law. The 4th section of the act for the assessment of tax- 
es,§ declares that ^'- all personal estate of whatever description* 
shall be subject to taxation. 

The Trustees of school district No. 1 in the town of 
Athens, against the Commissioners of Common 
Schools of said town. 

If the annual report of the trustees of a school district is furnished before the 
public moneys are apportioned by the commissioners, it is in time. 

An omission on the part of the trustees to comply with a provision of law before 
the act containing it has been published and distributed, ought not to preju- 
dice the equitable rights of the district. 

This was an appeal by the trustees of school district No. 1 in 
the town of Athens, from the decision of the commissioners of 
common schools of said town, in refusing to allow that district a 
portion of the pubhc money. The facts are fully stated in tha 
Superintendent's decision. 

• Sub. 3 of sec. 75, and page 482, sec. 79, vol. 1, R. S. 

t Sec. 76, page 482, vol. 1, R. S. 

X Sub. 3 of sec. 4, page 388, vol. I, R. S. 

§ Sec. 1, page 887, vol. 1, R. S. 



10 CASES DECIDED BY THE 

By A. C. Flagg, July 21, 1826. In this case the commis- 
sioners rejected the report of the trustees of district No. 1, and 
refused to apportion the school money to said district. 

1st. Because the report of the trustees was not made within 
the time contemplated by the school act. 

2d. That said report does not contain the names of parents 
and guardians of children in said district, as required by the act. 

From this decision one of the commissioners dissented. The 
trustees state that they were newly elected last spring ; that on 
being elected it was not made known to them that the annual 
report had not been made ; that as soon as the omission was 
known the most prompt measures were adopted to remedy the 
defect ; that the report was made out and placed in the hands of 
the town clerk on the tenth of April, and before the commission- 
ers had met to apportion the public money. The commissioners 
met on the first of July. 

The trustees further state, in relation to the second objection, 
that they obtained the school act from the town clerk, and that 
the 3£X requiring a list of the parents and guardians of children 
was not contained in the law which they received from the 
clerk. 

Two of the commissioners concur in the statement made out 
by the trustees : it is therefore taken as embracing all the facts 
which are necessary in a decision of this question. 

The ultimate object of the school system is to secure to each 
school district in the state a rateable proportion of the public 
money as an inducement and encouragement to the employ- 
ment of competent instructors, and the establishment and con- 
tinuance of good schools. To effect this object, regulations, and 
a strict observance of them, are necessary. 

But where the inhabitants of a district have complied with all 
the substantial requirements of the law, although the trustees 
may have omitted some fact, it is better to allow the report to be 
corrected, than to deprive a district of its equitable portion of the 
school moneys : For the deprivation falls on the inhabitants of 
the district, and they have complied with the conditions of the 
law in fact, although their trustees have not in form. If the 
report had not been furnished before the commissioners met, the 
money would have been apportioned, and the district would 
have been without remedy ; the other districts being interested in 
having a prompt distribution of the money. But this report 
seems to have been made before the commissioners met to distri- 
bute the money, and therefore could not have occasioned delay 
or worked an injury to the other districts of the town. 

The second olsjection relates to an omission of the names of 
the parents and guardians of the children between 5 and 15, 
agreeabl}^ to an amendment of the school act, passed in 1823. 



SUPERINTENDENT OF COMMON SCHOOLS. 11 

This amendment has not been distributed to the school districts, 
and as the trustees were newly elected, and called upon the town 
clerk for the law, and as he gave them the " act for the support 
of common schools" published and distributed by order of the 
Superintendent, they had a right to suppose that this act con- 
tained all the law on the subject ; and it would be unreasonable 
that a district should lose its rights for an omission under such 
circumstances. 

The object of requiring the names of parents and guardians, 
is to enable the commissioners to test the accuracy of the num- 
ber of children returned by trustees : without this, where con- 
troversies existed as to the lines of districts, the same children 
would be returned by two sets of trustees, and the reports could 
not be impeached. By giving the names, a remedy is furnished 
for such diliiculties. In the case of district No. 1, the accuracy 
of the hst of children is not questioned, and the rights of other 
districts are not prejudiced by this omission to give the names of 
parents. 

Under all the circumstances of this case, it is decided, that 
the report of the trustees of district No. 1 in Athens, be accepted 
by the commissioners, and that said district is entitled to its just 
proportion of the school money. 

The trustees of school district No. 4 in the town of 
Orangetown, ex parte. 

N'one but children residing in a school district can of right be benefitted by the 
public money. 

But if children not residing in the district are admitted into the school, their pa- 
rents should be apprised of the conditions on which they are received. 

This was an application to the Superintendent for his direc- 
tion on the following case: An inhabitant of school district No. 
4 in the town of Orangetown, sent to the district school three of 
his grand children, who resided vdth their father in the state of 
New-Jersey, near the line of the district ; the grand parent, who 
owned about one fourth of the taxable property of the district, 
holding himself responsible for their tuition. 

By A. C. Flagg, July 27, 1826.' The question presented 
by your letter of the 20th is, whether children residing in an- 
other Slate, and not incorporated in the district, can participate 
in the public money. There is no provision in the law to ex- 
tend the benefit to any except resident childreii of the district. 
Indeed the trustees can exclude all children except those who 
are residents of the district, even from attending the school. In 
the exposition of the school act, page 35, Mr, Hawley says, — 
" If children not residing in the district be permitted by the trus- 
tees to attend their school, as such permission might have been 



12 CASES DECIDED BY THE 

withheld, it may, and ought if granted, to be on condition (hat 
no part of the pubhc money shall be applied for their benefit." 

But in the case presented in district No. 4 in Orangetown, it 
appears that the trustees granted permission to non-resident cliii- 
dren to attend the school, on the application of a resident and 
taxable inhabitant of their own district, and without any condi- 
tions, save those which were common to all the children of the 
district. The school is closed, and you are now to apply the 
public money and collect the residue of the teacher's wages from 
the inhabitants who are liable therefor. The public money is 
paid, as far as it goes, towards extinguishing the sum total ot 
tuition expenses for the district. The parent of the children be- 
ing out of the state, has no claim to any benefit from the school 
money; and if the children as a matter of favor had been ad- 
mitted on his application, he would have been bound to pay the 
full expense of tuition. But he is out of your jurisdiction, and 
cannot be taxed ; and indeed he has made no contract with the 
trustees, and is not on any principle expected or required to pay. 
The legal claim of the trustees is against the grand-father of the 
children ; he made the contract, and he is bound to pay accord- 
ing to the conditions of his contract. He being a resident of 
the district, and as the trustees admitted scholars on his re- 
quest, without conditions, common usage would guarantee to 
him the conditions which were usual for all the taxable inhabi- 
tants of the district. The justice of having the conditions es- 
tablished ot the commencement of the school, if any discrimi- 
nation was to be made, is obvious : it might have been one in- 
ducement witli the grand-father, in becoming accountable for 
the tuition of the children, that he could give them the advan- 
tages of school privileges which he had been taxed in common 
with others to acquire. Then was the time for the trustees to 
inform him that the children could not be admitted to the privi- 
leges of the school, on his request, unless he woidd pay full tui- 
tion without the benefit of the public money. Unless there ex- 
ists some special cause, the trustees must assess all the tax pay- 
ing citizens of the district at the same rate per scholar, and it 
would be unfair to apply special conditions to the prejudice of 
the interests of an individual unless the terms were made known 
to him at the time the contract or apphcation was made for th^ 
tuition of the children in question. 

The admission of non-resident scholars is an act of favor al- 
together. There is no law for admitting them at all : districts 
and trustees accede to it as a matter of courtesy or acco;nmoda- 
tion, and the trustees can dictate the conditions ; they can re- 
quire foreign scholars to pay full price for schoohng, and also for 
house rent ; but having in this case exacted none of these con- 
ditions, and having consented that the children should be meno- 



SUPERINTENDENT OF COMMON SCHOOLS. 13 

hers of their school, on the application and responsibility of one 
of the inhabitants of their own district, they can only make out 
an equal asscHsnient, according to the scholars sent, upon all the 
tax paying inhabitants in the same district. 

In future, as there is no law in favor of the admission of scho- 
lars from another state, the tiustees ought not to admit them, 
unless upon such conditions as will protect most scrupulously the 
interests of residents of the district. 

The Commissioners of Common Schools of the town 
of Burns, ex parte. 

On the division of a town and the formation of a new one, the commissioners 
of common schools of the new town cannot disturb the organization of a 
school district Iving partly in both, without the concurrence of the commis- 
sioners of the other. 

Inhabitants of school districts have not power to alter the boundaries of their 
districts. 

Commissioners of common schools are not authorized to change the site of a dis- 
trict school-house, although their consent to such change is necessary in some 
cases. 

This was an application from the commissioners of common 
schools of the town of Burns for the decision of the Superinten- 
dent upon their own proceedings in relation to school district No. 
1, lying partly in that town and partly in the adjoining town of 
Dansville. By an act passed the 17lh March, 1826, a part of 
the town of Ossian was set off and erected into a new town by 
the name of Burns. By this division, school district No. 1, lying 
partly in the town of Ossian and partly in the town of Dans- 
ville, became a part of the town of Burns and Dansville, all the 
territory of the district belonging to the town of Ossian being in- 
cluded in the bounds of the new town. Soon after the division, 
the commissioners of common schools of the new town met, to- 
gether with the inhabitants of school district No. 1, for the pur- 
[Xjse of re-organizing the district. The commissioners resolved 
that the connexion with Dansville should be dissolved; and at 
a subsequent meeting of the inhabitants of the district, it was 
declared by a resolution to that effect, that four persons residing 
in Dansville, and formerly constituting a part of that district, 
were no longer members of it. The commissioners of the town 
of Burns at the same time selected a new site for the district 
school-house. 

By A. C. Flagg, August 14, 1826. It seems that district 
No. 1 was originally formed from parts of Dansville and Ossian, 
(now Burns,) and your inquiry is, " had not the new town of 
Burns a right to form themselves into districts without reference 
to the town of Dansville ?" No. District No. 1 was originally 
formed by the concurrence of a major part of the commissioners 
of Dansville and Ossian ; and it is necessary to have a concur- 



14 CASES DECIDED BY THE 

rence of the same authority to dissolve as to form a district. 
Burns stands in the same relation to district No. 1 that Ossian 
did, and its commissioners could not dissolve the connexion with 
Dansville without giving notice to the commissioners of that 
town. If the commissioners refused or neglected to attend, then 
the commissioners of Burns might have proceeded to dissolve 
the connexion, as provided by the 6th section of the amendment 
to the school act of 1822.* 

The vote in relation to admitting or excluding the four per- 
sons in Dansville is of no consequence. The district could not 
vote away their rights, and if they were not legal members of 
the district, a vote could not make them so. The 12th section 
of the act of 1819,t gives to the commissioners the sole power 
of forming, as well as altering and regulating school districts ; 
but in this case the district meeting usurped that authority, when 
they determined to vote four members out of the district. 

"Were the acts of the commissioners legal as to fixing the 
site of the school-house, contrary to the voice of the district?'' 

The 20th section of the act of 1819+ authorizes the inhabi- 
tants of the district, or a majority of such of them as shall be 
present at any district meeting legally convened, to fix on the site 
of the school-house. A majority can designate the site ; but after 
it is fixed, and a house built, even a majority of a regular meeting 
cannot remove the site, without a certificate from a major part 
of the commissioners that such removal is necessary and proper. 
The proviso to the 20th section^ is designed to give the commis- 
sioners a negative upon the district vote under a particular state 
of things. They (the commissioners) have no authority to 
change the site of a school-house; they can assent to the 
change or object to it. The conuiiissioners ought not to inter- 
fere in changing the site of a school-house, unless requested by 
a vote of the district : and on such request, wdiich would be an 
expression of the wishes of a majority, the commissioners are to 
determine whether it is necessary and proper to have the change 
take place." H 

*Sec. 65, page 479, 1 vol. R. S. 

tSub. 1, sec. 20, page 470, 1 vol. R. S. 

jSec. 61, pase 47S, 1 vol. R. S. 

4 Act of 17 Feb., 1831, chap. 44. 

II The law in relation fo the removal of school-houses and change of their sites, 
has been amended in several important respects since this decision was pro- 
nounced, (see sec. 70 in the appendix to this volume,) though the principles cf 
the decision, so far as the right of commissioners of common school.^ to change 
the site of a school-house is concerned, are unaltered by subsequent iegislaticn. 



SUPERINTENDENT OF COMMON SCHOOLS. 15 

A. B., an inhabitant of school district No. 7 in flie 
town of Schoharie, ex parte. 

In making out rate-bills to provide for the payment of teachers' wages, inhabi- 
tants of school districts can only be charged for so much time as their children 
have actually attended school. 

Superintendent cannot interfere with proceedings before justices of the peace ; 
but his opinion will be given with a view to the amicable adjustment of con- 
troversies. 

This was an application to the Superintendent for his opinion 
upon a statement of facts contained therein. 

By A. C. Flagg, Septeiyiher 9, 1S26. Your letter of the 
8th states that a person who sent his children to a school in dis- 
trict No. 7 in Schoharie for two months and a half, was charged 
by the trustees in the warrant issued according to a vote of the 
district meeting for teachers' wages, with six months' tuition. 
On the state of facts presented in your letter, the trustees were 
wrong. The 26th section,* to which you refer, authorizes the 
trustees " to ascertain and settle by examination of the returns 
or school lists of their teacher by him for that purpose to be kept, 
and certified on oath to be just and true, the number of days lor 
which each person not exonerated shall be liable to pay for in- 
struction," and to make out a rate-bill accordingly. For what 
purpose is the teacher required to keep a list, and the trustees to 
examine tiiat list, unless for tlie purpose of ascertaining from 
it the number of days which each person has sent to school, 
and to charge them in proportion to the number of days actually 
sent ? The trustees under the authority given them to '• ascer- 
tain and settle," are not to do it arbitrarily, but according to fair 
principles " by examination of the school lists." There could 
be no justice in charging a person for 100 days, who had sent 
only 50 ; and it would be extremely oppressive if trustees could 
arbitrarily charge a man with six months schoohng, if he com- 
menced sending and stopped after two months. 

The demand of the bill at the time of withdrawing the scho- 
lars is of no consequence. The trustees could not make out the 
bill until the expiration of the school. But when they did make 
it out they should have taxed the indi\idual only for the num- 
ber of days during which he actually sent to school. 

You say that a suit has been commenced, and that my opin- 
ion will prevent litigation, &c. With this view it is given. 
There is no appeal, as you are doubtless awaie, from a suit at 
law to the Superintendent ; and I am reluctant to give opinions 
in a case where a suit is pending. At all events, opinions thus 
given ought not to intiuence the case before the magistrates. If 
the parties can agree to take their cause out of court, and sub- 
mit all the facts, I avUI cheerfully decide the case. 

*Sub. 12, sec. 76, page 482, Ist vol; R. S. 



16 CASES DECIDED BY THE 

The Trustees of school district No. 1 in the town of 
Middlefield against the Commissioners of Com- 
mon Schools of said town. 

The acts of an officer de facto are valid, so far as the public and third persons 
are concerned. 

This was an appeal from the trustees of school district No. 1 
in the town of Middlefield, from the proceedings of the commis- 
sioners of common schools of said town in setting off certain in- 
habitants to other districts. The ground of objection taken by 
the appellants was that one of the two commissioners by whom 
the alteration was made, did not file his acceptance of the office of 
commissioner until after the expiration of 15 days fiom his elec- 
tion, and until after the performance of the official act from 
which the appeal was brought. 

By A. C. Flagg, October 3, 1826. The principle involved 
in this application has been decided by the supreme court in the 
case of the People vs. Collins, 7th Johnson's Reports, page 549. 
In that case the court say, " The allegation is not material that 
the commissioners had not caused their oath of office to be filed 
in the town clerk's office. If the commissioners of highways 
acted without taking the oath required by law, they were liable 
to a penalty; or the town upon their default, might have pro- 
ceeded to a new choice of commissioners. But if the town did 
not, the subsequent acts of the commissioners as such, wpre 
valid as far as the rights of third persons and of the public were 
concerned in them." 

(anonymous.) 

Persons leasing specific portions of a lot are to be taxed for so much as they lease. 
The agent or sdivimt of the owner must reside on the lot in order to subject 
such owner to taxation. 

By A. C. Flagg, October 18, 1826. " A. owns a farm in 
district No. 24 of 200 acres, about 100 improved : he resides in 
No. 3: he leases two small lots and houses, and improves the 
remainder himself and by his hired men hving with him." 

1. The houses and lots leased should be assessed to the occu- 
pants ; as they lease specific portions of the same, they are ten- 
ants ; and Mr. Hawley in his exposition of the 25th section, p. 
33, school act, says in relation to making non-residents of the 
district taxable therein, that " it does not apply to landlords who 
have tenants thereon." If the tenant ought not to pay, he has 
his redress upon the landlord by the 32d section of the act of 
1819.* 

•Sec S3, page 483, vol. 1 R. S. 



SUPERINTENDENT OF COMMON SCHOOLS. 17 

2. If A. " improves and occupies by his agent or servant" the 
remainder of the farm, then he should be taxed for it ; and by 
the 25th section the vahiation is to be taken from the tlien last 
assessment roll of the town ; in which valuation the wood-land 
is of course included. 

Mr. Yates, in the 13th decision, p. 37, has decided that a non- 
resident, although he may cultivate a farm himself, cannot be 
taxed unless the farm is occupied at the time by his agent or 
servant. By this occupancy he probably meant a residence on 
the lot. In this case there has not been such an occupancy as 
would render the owner liable to taxation for the remainder of 
the farm ; and if the tenants have leases for specific parts of the 
farm, they can be assessed only for such parts as are covered by 
their leases. 

Asa Philips against the Trustees of school district 
No. 2 in the town of Granby. 

Rule of taxation applied to a particular case. 

This case was submitted by the parties. 

By A. C. Flagg, November 22, 1826. In the case submit- 
led by Asa Philips and the trustees of school district No. 2, Gran- 
by, Oswego county, it appears that the said Philips owns two- 
fifths of lot No 75 in Granby, on which are two houses, which 
are occupied by two men who are employed by Mr. Philips as 
sawyers in mills of his adjoining the premises, Mr. Philips resi- 
ding in another town and county. The 25th section of the act 
of 1819* provides that eveiy person owning or holding any real 
estate lying within such district, who shall improve and occupy 
the same by his agent or servant, shall be taken and considered 
a taxable inhabitant of such district, <fec. Where a family resides 
upon a lot, it is to be presumed that there are scholars to enjoy 
the tenefits of a school, and the residence of a family on the lot 
is such an occupancy as to justify taxation. If the individual 
hires the premises, and is in the character of a tenant, then he 
is to be taxed personally ; but in this case Mr. Philips states 
that he employs these men as sawyers. It is therefore decided 
that the trustees are correct in assessing Mr. Philips for his in- 
terest in lot No. 75, in school district No. 2, Granby. 

*Sec. 77, page 482, vol. 1, R. S. 



IS CASES DECIDED BY THE 

The Clerk of school district No. 9 in the town of 
New-Haven, ex parte. 

A new district being formed, a notice to each inliabitant of the time and place 
for the first meeting is sufficient. 

This was an application from the clerk of school district No. 
9 in the town of New-Haven, for the direction of the Superin-, 
tendent in respect to a notice given in the manner explained in 
the subjoined opinion. 

By A. C. Fi^AGG, December 6, 182(5. In warning a school 
meeting in the first organization of tlie district, a peison liable 
to pay taxes notified the inhabitants that they were set ofi' hito a 
district, and of the time and place of the meeting. This in my 
opinion was a sufficient notice. The 13th section of the act of 
IS 19* says the commissioners shall give a written notice to some 
inhabitant hable to pay taxes, "describing such district," &e. 
It is necessary for the person notifying the inhabitants to have 
the district described, in order that he may know whom to notify. 
The inliabitant notified of the school meeting has no necessity 
for knowing who else is notified. The notice is to him as an in- 
dividual. The same section defines the extent of this notice to 
individuals by saying when the person is absent from home, he 
is to Ije warned by leaving at his place of abode a copy of the 
commissioners' notice. " or of so nuich thereof as relates to the 
time and place of such meeting." This is clear and conclusive. 
It coidd not be necessary (hat a personal notice should be more 
full and pariicular than is required for a notice left in the absence 
of the person notified. 

Josiah Hilton and others against the inhabitants of 
school district No. 3 in the town of Erwin. 

A person iaking up his residence in a school district, becomes by tliat act a vo- 
ter, if he has Ihe requisite qualitications. 

If in balloting for district officers the number of ballots exceeds the number of 
votei-s, a second balloting should take place. 

This was an appeal by .Tosiah Hilton and others, inhabi- 
tants of school district No. 3 in the town of Erwin, from the 

* Sec 55, page 477, vol. 1, R. S. In the case of King vs. Grout, 7 Wen- 
dell, 341, decided in 1831, the Supreme Court held that it was not indispensa- 
bly necessary to insert the boundaries of the district in a notice given by com- 
missioners ot' couunon schools for a meeting for the election of officers in school 
district No. 1 in the town of Ogdon under circximstances somewhat similar to 
those whicli occurred in school district No. 9 above reported; though it is sup- 
posed that i\\o. notice in the case decided by the Supreme Court was given in 
consequence of a ri -organization oi the school district, and when there was no 
competent authority existing within it to call a special distsict meeting. 



SUPERINTENDENT OF COMMON SCHOOLS. 19 

proceedings of an annual meeting in said district, at which offi- 
cers for the ensuing- year were chosen. The objections, upon 
the ground of which the interposition of the Superintendent was 
sought, were ; 

1st. That one person voted at the meeting who had come in- 
to the district a short time before, and who had not the amount 
of property necessary to entitle him to vote ; 

2nd. That in counting the iKiUots, they were found to be one 
more in number than the persons present. 

By A. C. Flagg, February 22, 1827. If the person who is 
alleged by the appellants not to have been entitled to vote, had 
actually taken up his residence in the district, and had the pro- 
perty required by law, he was a voter, although he might have 
been there only a week. If he was not a taxable inhabitant, 
he might have been prosecuted for the jx^nalty, provided by law, 
before a magistrate, before whom access to all tlie facts could be 
had. The testimony before the Superintendent is too vague in 
reference to this point to justify an interference with the pro- 
ceedings on that ground. 

It appears that there was one more ballot than there were per- 
sons present at tiio meeting. The most satisfactory jnoceeding 
in such a case would have l>een to have ballotted over again ; 
and this ought to have been done • A double ballot being put 
in, however, does not destroy an election. When the ballots 
and poll-lists do not agree, (in general elections,) the excess of 
ballots are drawn before they are opened : but the election or the 
votes of the town are not vitiated by a disagreement between 
the poll-list and the ballots- It is stated in the allidavit of the 
moderator that the persons declared elected, had a majority after 
deducting the ballot alluded to. 

Under all the circumstances of this case, it is decided that the 
officers chosen in district No. 2 in the town of Erwin, at the an- 
nual meeting, from the proceedings of which relief is sought, 
are the legal officers of said district, and that the appeal be dis- 
missed. 

The Trustees of school district No. 14 in the town 
of Cazenovia, ex parte. 

If the district cleric refuses to give notice of a meeting of the inhalutant.s, the 
notice may be giTeii by tlie trustees. 

If the collector refuises to give a bond, his office becomes vacated, and the trus- 
tees may make a new ap|)ointment. 

This was an application from the trustees of school district 
No. 14 in the town of Cazenovia, for the direction of the Su- 
jierintendent with respect to the following cases: 



20 CASES DECIDED BY THE 

1st. The district clerk when required by them to give notice 
of a meeting of the inhabitants, refused to act. 

2nd. The collector of the district, on receiving a warrant for 
the collection of a tax, declined giving a bond for the faithful 
discharge of his duties. 

By A. C. Flagg, March 12, 1827. By the proviso to the 
20th section of the act of 1819, the trustees are authorized to 
call special meetings. By the 23d section* it is made the duty 
of the clerk to notify such meetings whenever they shall be call- 
ed by the trustees ; and in case of the absence or incapacity of 
the clerk, tthe trustees themselves may (and it is declared their 
duty to) give notice to the inhabitants of the district of a special 
meeting. If the cleik refused to notify the meeting, then it 
might be done by the trustees or one of them. Even for a want 
of notice to a part of the inhabitants, a meeting shall not be 
deemed illegal, unless the omission to give such notice was wil- 
ful or designed, (see last clause of the proviso to the 20th section., 
act of 1819.t) 

By the 24th section of the school act,, the trustees can require 
a bond from the collector, " and in case of his refusal or neglect 
to execute and deliver such bond within such time, not less than 
ten days, as shall be allowed to him for that purpose by the 
trustees, his office of collector shall thereby be vacated, and 
thereupon it shall and may be lavi^ful for the said trustees, or the 
major part of them, to appoint any other person residing in their 
district to supply such office so vacated."§ 

(anonymous.) 

If the commis&ioners of common schools know a district report to be erroneous, 
the public money may be withheld, and the case submitted to the Superin- 
tendent. 

By A..,G. Flagg, March 16, 1827. If the trustees of a 
school district make a false report, they are liable to a fine of 
twenty-five dollars, under the 28th section of the school act.H 
Commissioners of common schools caimot actually know a re- 
port to be erroneous, unless they have positive proof of the fact. 
If such proof were to be presented to them, they might withhold 
the public money until the facts could be presented to the Su- 
perintendent for his decision. 

* Sub. 2, sec. 74, page 480, vol. 1, R. S. 
t Sub. 2, sec. 75, page 481, vol. 1, R. S. | Sec. 63, page 478, vol. 1, R S. 
§ Sec. 107, page 487, vol. 1, R. S. 11 Sec. m, page 485, vol. 1, R. S. 



SUPERINTENDENT OF COMMON SCHOOLS. 21 

The Trustees of school district No. 6 in the town of 
Canajoharie, ex parte. 

A tax may b« levied in a school district to build a wood-house and necessary. 

This was an application to the Superintendent to decide 
" whether a school district is authorized to raise money by tax 
to build a wood-house and such other appendages as common 
decency requires should be attached to a school-house ?" 

By A. C. Flagg, May 5, 1827. The 20th section of the 
act of 1819 gives authority to the taxable inhabitants of school 
districts to vote such a tax as a majority of them shall deem 
suificient to procure a school-house, and to furnish it with " ne- 
cessary fuel and appendages."* Both the conveniences referred 
to in the case presented to me are to be regarded as necessary 
appendages to a school-house, and the inhabitants of the district 
have an undoubted right to provide them. 

The Town Clerk of the town of De Ruyter, ex parte. 

The proceeds of lands set apart for the support of the common schools in a par- 
ticular town, must be applied exclusively for the benefit of the inhabitant of 
the town to which the lands belong. 

This was an application for the direction of the Superinten- 
dent with regard to the disposition to be made of the rent of a 
school lot belonging to the town of Fabius, in Onondaga coun- 
ty, a portion of the rent having been apportioned to a school dis- 
trict lying partly in that town and partly in the town of De 
Ruyter, Madison county, which had no local fund yielding an 
annual income. The question submitted to the Superintendent 
was, whether the amount so apportioned to the joint district was 
to be regarded as a common fund, to be applied for the benefit 
of the entire district, or v/hether it was to be applied exclusively 
for the benefit of the inhabitants of that part of the district lying 
within the boundaries of the town of Fabius. 

By A. C. Flagg, Maij 5, 1827. The third section of the 
act relative to the school lands passed March 23, 1798, provides 
that the money arising from those lands '• shall be applied to the 
use of schools or support of the gospel, in the original townships 
as surveyed, in which such lots shall be situated, and for no 
other purpose." This law has a special application to the funds 
derived from the school lands, and is a warrant for the mode of 
distribution adopted in your district. Where a district is formed 
partly from a town having this local fund, and partly from a 
town having none, the only way of carrying the act of 1798 in- 

•Sub. 5, aec, 61, page 478. vol. 1, R, S. 



22 CASES DECIDED BY THE 

to effect is for the trustees to make out separate assessments for 
the residue of the teacher's wages, if any, and in graduating 
the assessment, to give credit to the inhabitants of Fabius to the 
amount derived from their local fund, as has been done. In 
cases where an inequaUty exists in towns out of which double 
districts were formed, by reason of fines or by raising double 
the amount of school money in one town and not in the other, 
&c., the amount received should be considered a common fund 
for the use of all the inhabitants of the district. Suppose al- 
so that by the neglect of the commissioners the public money 
is withheld from one town. Still the trustees of a double dis- 
trict would pay the money received from the other town to the 
teacher, and all the inhabitants of the district would share alike. 
The exception is made in cases which fall under the act of 
1798. Some districts are formed with neighborhoods in other 
states, and in such cases the trustees of course have to make 
out two assessments for teacher's wages, as you have done. 
Where a district is formed from two towns or counties, the offi- 
cers may be located in any part of the district. County and 
town lines, so far as relates to the district, have no influence : 
the district lines are alone material in what relates to the organi- 
zation and government of the district. Where districts are form- 
ed with other states, the law has specially provided, that one 
trustee at least shall be chosen in the part of the district lying in 
this state, (sec. 27*) for the reason that the other part of the dis- 
trict is beyond the jurisdiction of the state. 

(anonymous.) 

The real estate of ministers of tlie gospel is exempt from taxation to a certain 
amount, only when occupied by them. 

By A. C. Flagg, July 7, 1827. By the 3rd section of the 
actt for the assessment and collection of taxes, the real estate of 
a minister of the gospel is exempt from taxation to a certain ex- 
tent, " if occupied by him." In the case of Clark Kenyon, jun., 
as I understand from your letter, he is the tenant of the minis- 
ter, and the occupant, and therefore liable to be taxed for the 
farm. 

* Sec. 95, page 485, vol. I, R. S. t Sub. 8, sec. 4, page 388, vol. 1, R. S. 



SUPERINTENDENT OF COMMON SCHOOLS. 23 

The inhabitants of joint school district No. 15, lying 
partly in the town of Warwick, and partly in the 
town of Goshen, against the Commissioners of 
Common Schools of said towns. 

In altering school districts lying partly in two or more towns, a majority of the 
commissioners of each town must concur. 

This was an appeal from the proceedings of the commission- 
ers of common schools of the towns of Warwick and Goshen, 
in dividing school district No. 1.5, with the consent of only one 
of the commissioners of the former town. 

By A. C. Flagg, Novetnher 13, 1827. In this case it is con- 
tended that the division of No. 15 is invalid, for the reason that 
jt was a district formed from parts of Goshen and Warwick, and 
that a major part of the commissioners of each town did not as- 
sent to the division of the old district No. 15, It appears by the 
affidavit of H. M. Hopkins, one of the commissioners of Goshen, 
that Mr. Shepherd, one of the commissioners of Warwick, dis- 
sented from the division, and " contended that the law required 
the consent of a majority of the commissioners of botli towns, 
(to wit, two,) which opinion was overruled, and he, the said 
Shepherd, although opposed to the division, signed the proceed- 
ings," (fee. 

Wilham Shepherd, the above named commissioner, testifies, 
" that from the site and location of the said district, he is entire- 
ly of the opinion that it ought not to be divided, and that he 
signed the proceedings under the representation that his with- 
holding his name could make no difference, if the construction 
of the law by tJie other commissioners was right ; although con- 
trary to his deliberate and decided opinion at the time." It ap- 
pears also that only one of the commissioners of Warwick was 
in favor of the division, and that he and the three commission- 
ers of Goshen constituted the body which voted that they had a 
right to act for the two towns. No district can be formed or al- 
tered without the assent of two at least of the commissioners of 
the town in which the district is situated. In the formation of 
double districts, the commissioners represent their respective 
towns ; and the rights of those whom they represent cannot be 
voted away by commissioners who represent the inhabitants of 
another town. The law does not authorize the question to be 
settled by a joint ballot of the commissioners of two or more 
towns. The law says, "Whenever it may be convenient and 
necessary to form a district out of two or more adjoining towns, 
it shall and may be lawful for the commissioners aforesaid, or 
the major part of them, from each of such adjoining towns, to 



24 CASES DECIDED BY THE 

form such district, and to alter and regulate the same."* It is 
clear from the language of this act, that the assent of a major 
part of the commissioners of each town interested is requisite to 
form or alter a district. It is satisfactorily proved that although 
Mr. Shepherd signed the proceedings, he did not consent to the 
division of the district, and this fact is shown by the witnesses 
of both parties. The resolution which was adopted, that three 
commissioners from Goshen and one from Warwick, had a right 
to alter the district, seems to show that Mr. Shepherd did not 
consent ; and hence the resolution to alter it without his con- 
sent. 

It is therefore decided that the proceedings of the commission- 
ers, in dividing district No. 15, be annulled. 

(anonymous.) 

if a farm lies partly in two school districts, it is to be taxed in the district in 
which the occupant resides. 

By A. C. Flagg, December 10, 1827. By looking at the 
25th section of the school act of 1819, page 17, you will see 
that it is made the duty of trustees to assess " all the taxa- 
ble inhabitants residing in such district, according and in pro- 
portion to the valuations of the taxable property which shall be 
owned or possessed by them within such district, or which being 
intersected by the boundaries of such district, shall be so owned 
or possessed by them partly in such district and partly in any 
adjoining district."! 

The principle is, that where a line between two districts runs 
through a man's farm, he shall be taxed for the whole of his 
farm in the district where his house stands or where he resides. 
On this point the law above quoted is clear, and sucli has been 
the construction given to it. 

The same principle governs in the town assessments, as you 
may see by the 8th section of the act of 1823, which provides 
that " where the line between two towns divides any occupied 
lot or farm, the same shall be taxed in the town where the oc- 
cupant lives, provided he or she lives on the lot."t 

(anonymous.) 

Conditional certificates of qualification cannot be given to teachers. 

By A. C Flagg, December 16, 1827. The school act dccss 
not recognize conditional certificates to be given to teachers. 

*Sec. 21, page 471, vol. 1, R. S. 
f Sec. 76, page 482, vol. 1, R. S. J Sec. 4, page 389, vol. !, R. S 



SUPERINTENDENT OF COMMON SCHOOLS. 25 

While a feeling very properly prevails to extend the benefits of 
the school money to those districts the least able to support a 
scliool, it is important that inspectors should do all in their pow- 
er to elevate the standard of instruction in the common schools. 
Much is left to their sound discretion, and much depends on a 
rigid discharge of their duties. I cannot authorize any relaxa- 
tion of the mode of giving certificates; the law does not justify it. 

The Commissioners of Common Schools of the town 
of Milton, ex parte. 

Children in poor-houses are not to be included in the annual reports of schooJ 

districts. 

This was an application for the direction of the Superinten- 
dent v/ith respect to an apportionment of school moneys to dis- 
trict No. 3 in the town of Milton, the trustees having included 
in their annual report all the children in the county poor-house, 
which was situated within the boundaries of the district. 

By A. C. Flagg, April 26, 1828. The 21 children belong- 
ing to the poor-house ought not to be numbered for the purpose 
of drawing money into the district where the poor-house happens 
to be located. A deduction from the number of children report- 
ed by district No. 3 must be made accordmgly.* 

The Commissioners of Common Schools of the town 
of Fabius, ex parte. 

The proceeds of the school fund of the town of Fabius must be applied by tho 

trustees of the fund as the inhabitants may direct. 
But trustees of school districts must apply such proceeds to the payment of 

qualified teachers. 

This was an application for the direction of the Superinten- 
dent with regard to the appropriation and expenditure of the pro- 
ceeds of the local s'chool fund of the town of Fabius. 

By A. C. Flagg, July 12, 1828. The 24th section of the 
new act, p. 8, expressly provides that no moneys shall be paid 
to a district unless a teacher duly qualified has been employed 
for three months at least, " and that all moneys received from 
the commissioners during that year [as appears by the report] 
have been applied to the payment of the compensation of such 
teacher," see also form for the commissioners' report. You must 
certify that " the money has been expended in paying teachers 

*By the 6th section of the act of 25th April, 1831, it is provided that it 
shall " not be lawful for the trustees of any school district to include in their 
annual returns the names of any children who are supported at a county poor- 
house." 



26 CASES DECIDED BY THE 

duly appointed and approved in all respects according to law." 
The trustees are not allowed to pay the public money to a teach- 
er unless he is quahfied as the law requires. The fourth section 
of the act of 1813, chap. 100, p. 157, session laws, provides that 
the proceeds of the school lot in Fabius shall be applied by the 
trustees of the fund in such manner as the town meeting shall 
under the law direct. If this money is paid over to the commis- 
sioners of common schools they must apply it as they do the oth- 
er moneys which come into their hands for the use of schools, to 
the payment of the wages of qualified teachers. And so with 
the trustees of the district, if it is paid to them. The town by a 
vote might possibly through the trustees of the town fund, vary 
the application. But if a vote is passed to pay it to the district 
trustees, they must be guided in its application by the provisions 
of the law under which their office is created, and in which their 
duties are prescribed. But it is not probable that your town has 
or will pass a vote to apply the local school fund to the payment 
of the wages of teachers who are not qualified according to law. 

The Trustees of school district No. 4 in the town of 
Hounsfield, ex parte. 

Private property cannot be taken for a site for a school-house without the con- 
sent of the owner. 

This was a case in which the title to the site of the school- 
Iiouse in district No. 4 in the town of Hounsfield, proved defec- 
tive, and the owner of the land threatened to re-enter. 

By A. C. Flagg, October 15, 1828. It appears by your let- 
ter, that the district has no title to the fee of the land, nor a 
lease for the site of the school-house. You are therefore in the 
power of the person wlio owns the premises on which the school- 
house stands. The district has no power over individual pro- 
perty in obtaining a site for a school-house ; if they fix a site 
and the title fails, they must seek a site where the land can be 
procured. You are in the situation of a district without any site 
for a school-house, unless you can procure the fee or a lease of 
the land on which your house stands. Your best course is to 
compromise this question with the owner of the farm, who if he 
is a reasonable man will do what is just in the premises. If the 
trustees can procure the land, or hire it, then the site is well 
enough. If they cannot, the district can vote a site elsewhere. 
The prohibition against changing the site of a school-house does 
not apply to a case of this nature. 



SUPERINTENDENT OF COMMON SCHOOLS. 27 

The Trustees of school district No. 5 in the town of 
Pompey, ex parte. 

A non-resident owner is taxable for land occupied by an agent: but not if occti- 
pied by a tenant: and if it is unoccupied, he is taxable for so much only as is 
cleared and cultivated. 

This was a case in which a person hving out of the bounda- 
ries of district No. 5 in the town of Pompey, owned a lot of land 
within that district, the lot being occupied, but not by him. 

By A. C. Flagg, Novenibe?' 19, 1828. If the non-resident 
owner of the 250 acres of land in your district has an agent 
living on the premises, then the owner of the land can be taxed 
for it under sec. 77, as occupying it by his agent. If the person 
living on the premises rents the land as tenant, then he, the 
tenant, is liable to be taxed for the premises, that is for the whole 
lot. When a lot is not occupied by an agent or servant, then the 
owner, if a non-resident, is to be taxed for such parts only as are 
" actually cleared and cultivated," under sec. 78.* 

The Trustees of school district No. 1 in the town of 
Jamestown, ar parte. 

Trustees of school districts may renew a warrant to collect a tax, whether issued 

by themselves or their predecessors. 
If a district meeting votes to renew a warrant and collect a tax, the trustees may 

regard it as an original vote to raise the amount specified, and issue a new 

warrant for its collection. 
Taxes can only be voted by the inhabitants of school districts for the objects 

enumerated by law. 

On the 19th May, 1827, the inhabitants of school district No. 
1 in the town of Jamestown, voted a tax of ten dollars " to de- 
fray contingent and other expenses, at the discretion of the trus- 
tees." The tax-list was made out with a w^arrant annexed, and 
delivered by the trustees to the collector for collection ; but through 
the neglect of the latter, no part of the amount was collected. 
On the 15th November, 1828, the inhabitants of the district vo- 
ted that the warrant for collecting a tax of ten dollars " for de- 
fraying necessary expenses at the discretion of the trustees," as 
voted at a district meeting on the 19th of May, 1827, be renew- 
ed, and put into the hands of the collector to be collected forth- 
with. The trustees of the district, doubting whether the old 

* The principle of this decision is fully sustained by the construction of the 
law by the Supreme Court in the case of Dubois vs. Thorne and others, 7 Wen- 
dell, 518, in which a lessee of a non-resident owner was held liable for a tax for 
part of a lot, and two sub-tenants for the parts occupied by them. The court 
said that " the mere ownership of the property, without occupation by himself, 
his agent or servant," was not sufficient to charge the non-resident owner with 
the tax. 



28 CASES DECIDED BY THE 

warrant should be renewed, or whether a new tax-list should be 
made out, applied to the Superintendent for his direction. 

By A. C Flagg, November 23, 1828. Trustees of school 
districts for the time being may renew a warrant for the collec- 
tion of a tax, whether issued by themselves or their predecessors, 
and without a vote of the district meeting ; but a renewal must 
be for the same sum, and against the same individuals. The 
vote of Nov. 15th would authorize the trustees to levy the same 
as a new tax on the present inhabitants of the district. It is a 
new tax and must be made out against the present taxable in- 
habitants of the district in the same manner as any other tax. 
These opinions are based upon the presumption that the district 
meeting had a right to vote this tax. The powers of district 
meetings are defined in section 61 of the Revised Statutes, rela- 
ting to common schools. The meeting should vote a specified 
sum for a specified object, and for such objects only as are em- 
braced and authorized by subdivision 5 of the above section. A 
vote for a sum to " defray necessary expenses at the discretion of 
the trustees," is altogether too loose and vague a proceeding in 
matters relating to the assessment of taxes, particularly where 
the statute has defined the objects for which a district meeting- 
may vote taxes.* 

The Trustees of school district No. 2 in the town of 
Brighton, ex parte, 

A bell is not a necessary appendage to a school-house, and cannot be provided 

by a tax. 

The inhabitants of school district No. 2 in the town of Brigh- 
ton procured, with the consent and approbation of the trustees, 
a bell for the district school-house. It was originally designed to 
raise by subscription the amount required to cover the expense ; 
but at the ensuing annual meeting it was unanimously resolved 
that a sum sufficient to pay for the bell and make some neces- 
sary repairs on the school-house should be raised on the taxable 
property of the district. The cost of the bell was $21 .50, and 
an additional sum of $8 . 50 was voted for repairs, amounting 
in the aggregate to $30. In consequence of the refusal of some 

* The Supreme Court, in the case of Robinson vs. Dodge and others, deci- 
ded that the inhabitants of a school district had no right to delegate to the trus- 
tees any discretionary power as to the aggregate amount of the tax to be collect- 
ed. The court said, they (the trustees) "are required to make a rate-bill or 
tax-bill to raise the sum voted for, which implies a vote for a definite sum." 

The act of 1814, under which the decision of the court was pronounced, dif- 
fers somewhat from the Revised Statutes in the language of the provision relat- 
ing to the imposition and collection of taxes for school district purposes, but not 
so much so as to require a different rule of construction. 



SUPERINTENDENT OF COMMON SCHOOLS. 29 

of the inhabitants who were not present at the annual meeting, 
to pay their proportion of the tax, the trustees of the district ap- 
plied to the Superintendent for his direction. 

By A. C. Flagg, Novem.ber 25, 1828. The statute relating 
to connnon schools authorizes the district meeting to vote a tax 
to build a school-house and to furnish the same with " necessa- 
ry fuel and appendages," and the question is whether a bell is a 
necessar}?^ appendage to a common school-house. It is not usual 
to furnish district school-houses with bells ; it may be conve- 
nient in your particular case to have one; but I cannot believe 
that a bell was contemplated by the legislature as among the 
objects authorized to be furnished for a school-house. It is there- 
fore my opinion (hat it is not a necessary appendage within the 
meaning of the statute, and that a tax cannot be voted to pro- 
vide one. 

The Commissioners of Common Schools of the town 
of Redhook, ex parte. 

A person who is assessed to work on the highway is entitled to vote at school 
district meetings. 

This was an application from the commissioners of common 
schools of the town of Redhook, for the opinion of the Super- 
intendent with regard to the right of a person who works on the 
highway, or pays a commutation therefor, to vote at school dis- 
trict meetings. 

By A. C. Flagg, November 28, 1828. Assessments to work 
on the highway entitle a person to vote in a school district. The 
phraseology of the old election law was similar to this ; and in- 
stances must have fallen under your notice where persons would 
pay a highway tax to entitle themselves to a vote. The old 
constitution required that persons voting on a tenement, should 
have "actually paid taxes to the state," and in the act for regu- 
lating elections passed March 29, 1813, sec. 10, p. 253, 2 vol. 
rev. laws of 1813, it is declared that every person having paid 
taxes on the highway, <fcc., "shall be considered as having paid 
taxes to the state" for the purposes of that act. 

The Commissioners of Common Schools of the town 
of Locke, ex parte. 

The provision reqnirins tlirep montliH notice to trustees of an alteration in their 
scliool district is intcnilcd for their potection, and to that end is to be benign- 
ly construed. 

In September, 1827, Messrs. Reuben Stearns and Nathaniel 
W. Ingraham v/ere set oil" from district No. 10 in the town of 



30 CASES DECIDED BY THE 

Locke, and attached to district No. 9 in the same town. In No- 
vember ensuing, Ingraham Avas elected a trustee of the latter 
district, and officiated in that capacity until November, 1828. 
There was no evidence on record of the alteration above men- 
tioned having been made with the consent of the trustees of dis- 
trict No 10, or that any notice had been served on them by the 
commissioners; but they were notified of the intention of the 
commissioners to set off the two individuals referred to, and of 
the time and place of meeting for the purpose. In November, 
1828, a tax was voted in district No. 9 to build a school-house, 
when a doubt was raised by one of them, whether they had 
been legally set off from No. 10. The facts were submitted to 
the Superintendent for his opinion. 

By A. C. Flagg, December 26, 1828. Messrs. Stearns and 
Ingraham petitioned the commissioners of common schools to be 
detached from district No. 10 to No. 9, and in September, 1827, 
their petition was granted ; and Ingraham was elected a trustee 
of No. 9, in which capacity he served until November, 1828. 
The alteration of district No. 10 by attaching them to No. 9, ap- 
pears to have been recorded in the usual manner under the old 
law. Whether the trustees of No. 10 were originally willing to 
gratify Messrs. Stearns and Ingi-aham in their request to be an- 
nexed to No. 9 or not, and whether notice was served or not, can- 
not after so long a time affect the relations of Messrs. S. and I. 
with the trustees and inhabitants of No. 9. The provision re- 
quiring the consent of trustees to detach persons from their dis- 
trict, and holding them three months without such consent, was 
made for the benefit and protection of the trustees, to whose in- 
jury the alteration might operate. For instance, trustees might 
have made contracts and incurred responsibiUties, which would 
operate oppressively, if some of the most wealthy were detached 
before they had time to collect the tax. In such cases the trus- 
tees are effectually protected by their veto upon the formation ef 
the district for three months, in which time they can collect their 
tax. And to carry this intention into effect, the act should be 
benignly and favorably construed for the protection of the trus- 
tees. But in relation to Messrs. Stearns and Ingraham, none of 
these reasons can avail them ; they desired to be set to No. 9, 
and were gratified. The trustees of No. 10, from their silence 
in the matter, seem to have acquiesced; and as the trustees have 
not sought to retain Messrs. S. and I., and more than a year 
has elapsed, they must be considered as having been legally at- 
tached to No. 9. 



SUPERINTENDENT OF COMMON SCHOOLS. 31 

The Trustees of school district No. in the town 

of Walkill, ex parte. 

Trustees of school districts cannot transfer to a teacher the power of enforcing 

the collection of his wages. 
Teachers are not allowed fees on sums voluntarily paid to them for tuition. 

The trustees of school district No. , made a contract with 

a teacher, by which he agreed to collect his own wages, with the 
understanding that he was to receive the usual fees for collec- 
tion. The question submitted was whether, in either of these 
respects, the contract was valid. 

By A. C. Flagg, December 30, 1S28. The trustees are to 
contract with and pay the teachers ; and those who send to the 
school are bound to pay the trustees the sums for which they are 
respectively liable. But the authority to coerce payment is not 
given to the teacher : persons indebted may pay to him the sums 
due from them, and his receipt for such payment is valid on the 
contract which the trustees have made with him. Such collec- 
tions are allowed by the law. But the district has a collector, 
and if the sums due the teacher are not voluntarily paid to him, 
then it is the duty of the trustees, according to subdivision 12, 
13 and 14, sec. 75, to ascertain the amount due from each 
person, by an examination of the school lists, to make out a 
rate-bill, adding 5 per cent, for collector's fees, and to give the 
bill and warrant to the collector. This is the only allowance of 
fees which can be made for collecting. In reference to collec- 
tions by the teacher, I find the terms of the old law were, that 
"the wages of teachers sliall be collected by the trustees, unless 
such teachers shall agree to collect the same," &c. The terms 
of tire law now are, " It shall be the duty of trustees, and they 
shall have power" "to collect the residue of such wages, ex- 
cepting such sums as may have been collected by the teachers," 
(fcc. The old law authorized an agreement with the teacher to 
collect his own wages; the new law tolerates such collections, 
but does not authorize the trustees to transfer to the teacher the 
power of coercing payment. It is therefore my opinion that the 
trustees must collect the wages, and that they have no right to 
make an allowance to the teacher for collecting. 

(anonymous.) 

Non-residents are liable to be taxed for pastures and meadows, as land cleared 
and cultivated. 

By A. C. Flagg, January 3, 1829. The question has been 
submitted whether salt meadows, from which the owners secured 
the grass, but which were not otherwi>'e improved, could be as- 
sessed in a school district under the 78tli section of the revised 



32 CASES DECIDED BY THE 

school act, the owners being non-residents of that district. Un- 
der the old act, cultivated land having no person actually occu- 
pying and residing upon it, could not be assessed to a non-resi- 
dent owner. The 78th section, therefore, is a new provision, 
evidently intended by the legislature to make all productive real 
estate contribute in taxes for the erection of school-houses, <fec., 
in the district where it is situated. The person who owns a lot 
in an adjoining district on which there is no tenement, and 
which he improves as pasture land or as meadow land, is clear- 
ly liable to be taxed for it now ; under the old law it was ex- 
empt. The owners of the salt meadow improve their land in 
the same manner, and for siffjilar purposes. Under the old law 
it could not be taxed ; but it is liable to taxation under the Re- 
vised Statutes. 

Thomas Cooper and others, inhabitants of school 
district No. 25 in the tovi^n of Chazy, ex parte. 

Persons annexed to a school district, after the school-house has been built and paid 
for, cannot be compelled to contribute to the expense of its construction. 

In the year 1825, school district No, 25 in the town of Chazy 
was formed and organized according to law. During the ensu- 
ing year, a school-house was built and paid for by a tax on the 
inhabitants of the district. In the year 1828, several persons 
were set off from school district No. 2 in said town, to district 
No. 25, by the commissioners of common scliools, without the 
consent of the trustees of the latter. This was an application 
to the Superintendent of Common Schools for an order to com- 
pel the persons thus annexed to district No. 25 to pay their pro- 
portion of the expense of building the school-house, or to set 
them back to district No. 2. 

By A. C. Flagg, January 12, 1829. District No. 25 in 
Chazy was organized, and after having built a school-house was 
enlarged by adding several persons to it without the consent of 
the trustees. The question is, whether the persons thus set to 
No. 25 can be assessed for any portion of the school house which 
had been erected and fully paid for before they became members 
of the district. There is no law for taxing them under such 
circumstances. 

They can be set back to the district from which they were 
taken, if, after a hearing of both parties, it is deemed proper. 
If the persons aggrieved wish a decision on this point, they must 
give notice as required by the regulations in relation to appeals. 



SUPERINTENDENT OF COMMON SCHOOLS. 33 

The Inspectors of Common Schools of the town of 
Ballston, ex parte. 

Teachers in joint sctiool districts may be examined by the inspectors of either 

town. 

This was an application from the inspectors of common 
schools of the town of Ballston for the opinion of the Superin- 
tendent on the following case : A teacher wag employed in a 
school district lying partly in Ballston and partly in an adjoining 
town, and after being examined by the inspectors of the former, 
was found deficient and was refused a certificate of qualification. 
A few days afterwards he applied to the inspectors of the adjoin- 
ing town, who examined him and gave him a certificate. 

By A. C. Flagg, January 28, 1829. The inspectors of 
either town may give a certificate to the teacher of a double dis- 
trict, (sec. 51.) The certificate, therefore, is good. If the teacher 
is decidedly incompetent, his certificate may be annulled by the 
inspectors of either town interested in the school. But this might 
lead to an unpleasant controversy, and ought not to be resorted 
to unless the district is to sufi^er by the incompetency of the 
teacher, 

• 

The Trustees of school district No. in the town 

of Hammond, ex parte. 

Children are to be numbered in the districts in which their parents reside. 
If children are boarded in a district to attend school, they must be numbered 
where their parents reside. 

This was an application from the trustees of school district 
No. in the town of Hammond for the opinion of the Super- 
intendent in the following case : In one of the school districts of 
the town no winter school was kept, and several of the inhabi- 
tants boarded their children in district No. for the purpose 

of sending them to school, which they attended in the latter dis- 
trict from the 1st of November, 1828, until February, 1829. 
The question submitted to the Superintendent was, whether 

\ho3e children should have been enumerated in district No. , 

on the last day of December, 1828, or whether they should 
have been enumerated in the district in which their parents re- 
sided on that day. 

By A. C. Flagg, February 6, 1829. Children must be 
numbered in the district where their parents reside ; and if the 
cliildren board and attend school in another district, this does 
not change their residence ; but they must still be numbered 
where their parents leside. 



34 CASES DECIDED BY THE 

The Trustees of school district No. 4 in the town of 
Somerset, ex parte. 

J£, for causes not to be controlled, a school has not been kept three months 
during the preceding year by a qualified teacher, the district will be allowed a 
share of the public money. 

School district No. 4 in the town of Somerset was formed in 
the early part of the year 1828. It was organized, a school- 
house was erected, and a teacher duly inspected was engaged 
for five months, and a school was commenced on the first day 
of August. Soon afterwards the district became so unhealthy 
that there were scarcely persons enough within it to take care of 
the sick, and the school was broken up about the 20th of Sep- 
tember, arid the teacher discharged. This state of things con- 
tinued until the first of November, when it was found impossible 
to procure a qualified teacher to commence a school before the 
first of January. The provision of the statute which requires 
school districts to have a school taught three months durino- the 
preceding year by a qualified teacher, in order to entitle them to 
a share of the pubHc moneys, was not compUed with. This was 
an apphcation to the Superintendent from the trustees of the dis- 
trict, through the commissioners of common schools of the town, 
to authorize the district, under the peculiar circumstances of 
the case, to receive a share of the public moneys. 

By A. C. Flagg, February 7, 1829. It appears by your 
statement that the trustees of district No. 4 employed a qualified 
teacher for five months^ but from the extraordinary sickness 
which prevailed, the school was broken up before three months 
were completed. As the trustees acted in good faith and took 
the steps necessary to comply with the law, and as the failure 
was from causes beyond their control, and involving no neglect 
on the part of the trustees or the district, it is proper, in my 
opinion, for these special reasons, to pay to district No. 4 its share 
of the school moneys. 

The inhabitants of school district No in the 

town of Villenova, ex parte. 

All children residing in a district are to have the benefit of (he public money, it 
they attend school, without reference to their ages. 

This was an application from the inhabitants of school dis- 
trict No. in the town of Villenova, for the opinion of the 

Superintendent as to the application of the public money for the 
benefit of children attending school who were under the age of 
5 years. 

By A. C. Flagg, February 16, 1829. The public money 



SUPERINTENDENT OF COMMON SCHOOLS. 35 

being paid to the teacher is shared equally by all who attend 
school, without reference to their ages. All residents of a dis- 
trict are entitled to a privilege in the school whether they are 
over 16 or under 5. But scholars belonging to other districts, or 
whose residence is not in your district, have no right to a share 
of the school moneys- 

The Trustees of school district No. 17 in the town of 
Hector, ex parte. 

A person set off from one school district to another is not entitled to any part of 
the value of the school-house or property of the district from which he is de- 
tached. 

The value of the school-house and other property is only to be apportioned when 
a new district is formed. 

This was an application from the trustees of school district 
No. 17 in the town of Hector to the Superintendent to ascertain 
whether an individual who was set off from that district to an 
adjoining one by the commissioners of common schools, was 
entitled to receive from the former his proportion of the value of 
the school-house and other property belonging to it. 

By A. C. Flagg, February 16, 1829. A person set off from 
a school district is not entitled to any remuneration for his interest 
in the school-house or other property belonging to the district 
from which he is detached. The apportiormient of the value of 
the school-house, <fcc., by sec. 67, is to be made only "when a 
new district shall be formed from one or more districts," <fcc. But 
setting one or more persons from one old district to another, does 
not give a claim to those detached to remuneration for the value 
of the school-house and other property. 

John Reedy and others against the Commissioners 
of Common Schools of the town of Germantown. 

The Superintendent will not interfere with the general arrangement of school 
districts in a town, excepting in special cases where cause is shown. 

This was an appeal from several inhabitants of the town of 
Germantown from the proceedings of the commissioners of com- 
mon schools in arranging the school districts. The application 
for the interposition of the Superintendent was not grounded 
upon the injustice or inconvenience of any particular case, but 
proceeded upon the allegation that the general plan was injudi- 
cious. 

By A. C. Flagg, March 2, 1829. By the 20th section of 
the revised school act, it is made the duty of the commissioners 
of common schools '-to divide their town into a convenient num- 



36 CASES DECIDED BY THE 

ber of school districts, and to regulate and alter such districts." 
They are chosen by the town for this express purpose : they are 
acquainted with the local situation of the territory, and having a 
view of the whole ground, their official acts are entitled to much 
respect, unless they are shown to have been produced by inte- 
rest, prejudice, or some other improper influence. 

It is presumed that the commissioners exercised their best 
judgments and acted from honest motives. If, however, their 
acts operate to the inconvenience or prejudice of individuals, the 
grievances of such individuals are entitled to redress, so fer as is 
consistent with the rights of others and the general good. By 
the 11th sec. of the revised school act, any person "conceiving 
himself aggrieved," &c., has a right to appeal. Now a person 
might very honestly differ in opinion with the commissioners as 
to the general organization of the town into districts : he might 
telieve that a different plan would have been better, and might 
therefore appeal, "conceiving himself aggrieved ;" but in such 
case the character of the grievance being a mere difference of 
opinion, would not be such as to induce the Superintendent to 
break up the entire organization of a town, which had been 
made by the proper authorities, after full examination and due 
deliberation. So far as relates to the general organization of a 
town, much reliance must be placed, from the nature of the 
case, upon the decision of the commissioners. 

The appeal is dismissed. 

The Commissioners of Common Schools of the towte 
of Ballston, ex parte. 

Errors of form in the annual reports of school districts may be corrected. 

This was an application from the commissioners of common 
schools of the town of Ballston for the direction of the Superin- 
tendent with regard to a case in which the trustees of a school 
district had failed to make their annual report in comphance 
vsdth the form prescribed, though the substantial matters required 
by law were fully shown. 

By A. C Flagg, March 11, 1829. In all cases where the 
districts have complied substantially with the law^ the trustees 
may be allowed to correct their reports as to mere matters of 
form at any time before the money is actually apportioned and 
paid. A district ought not to lose its money in consequence of 
a misconception of the law, or a mere clerical error on the part 
of some of its officers. The commissioners ought to consider 
themselves the guardians of the equitable rights of the districts, 
and when they discover an error as to form, which if not cor- 
rected would deprive the district of its just share of the public 



SUPERINTENDENT OF COMMON SCHOOLS. 37 

money, they should point it out to the tmstees, to the end that 
it may be corrected and the fair rights of the district secured. 

The inhabitants of school district No. 7 in the town 
of Champion against the Commissioners of Com- 
mon Schools of said town. 

When a new district is formed, the school-house and other property of the dis- 
trict, from which it is talien, must be appraised and apportioned at the same 
time. 

This was an appeal from the proceedings of the commission- 
ers of common schools of the town of Champion in relation to 
school district No. 7 in said town. This district was divided, 
and a new district formed, without appraising and apportioning 
the value of the school-house and otiier property belonging to 
the former. Three months subsequent to the formation of the 
new district, the commissioners, on the application of some of 
the persons annexed to it, re-assembled and appraised the school- 
house and other property belonging to district No. 7, and appor- 
tioned to the inhabitants set off to the new district, their propor- 
tion of the value of said house and property. From this pro- 
ceeding an appeal was brought. 

By A. C. Flagg, March 13, 1829. The language of th€ 
statute is, that the commissioners in forming a new district, 
^' shall ascertain the amount due to such district, at the time of 
forming such new district." The intention of the law is to have 
the valuation of the house, &c., made at the time of dividing the 
district. There are some reasons besides the plain terms of the 
statute, in favor of having the valuations made at that time 
rather than at any other. It is just and fair that the old district 
should know at the time of the division whether a tax is to be 
levied to pay for a portion of the school-house ; because in many 
instances the inhabitants \vould remonstrate against a division 
of the district if they knew that a tax would be required to pay 
those set off for a part of the school-house, when, without such 
knowledge, they might silently acquiesce in the division. It 
is also due to those retaining the school-house, that they should 
know whether they are to be taxed, as it might form the princi- 
pal reason for an appeal against the division of the district ; and 
if the principle were established that the valuation might take 
place at any time, designing persons might get the commission- 
ers to divide a district, and postpone levying the assessment 
until after the thirty days allowed for appealing from the divi- 
sion, and thus take the inhabitants by surprise, and deprive 
them of their fair redress in the ordinary way. An additional 
reason against deferring the valuation of the school-house is, 



38 CASES DECIDED BY THE 

that another portion of the inhabitants of the district retaining 
the house, might be detached to other adjoining districts, and leave 
the proportion of tax still heavier upon those who remained. It 
is my opinion, therefore, that in forming a new district from two 
or more districts, the valuation of the school-house must be made 
by the commissioners at the time of forming the district, if there 
is a school-house to which the district has an undisputed title ; 
and if the commissioners omit to make the necessary valuation, 
they cannot make the appraisement at a subsequent time with- 
out an order from the Superintendent of Common Schools, who 
will open the whole case by allowing an appeal from the pro- 
ceedings of the commissioners, both in making such appraise- 
ment, and in forming the new district. 
Decision accordingly. 

The Trustees of school district No. 3 in the town of 
Wilmington against the Inspectors of Common 
Schools of said town. 

If an inspector of common schools is employed as a teacher, he must be exa- 
mined like all other teachers. i 
An intemperate man ought not to be employed as a teacher of common schools. 

The trustees of school district No. 3 in the town of Wilming- 
ton employed as a teacher an individual who had been six years 
engaged in giving instruction, who had received at different 
times certificates of qualification, and who was, at the time he 
was so employed, an inspector of common schools of the towa. 
At a meeting of the commissioners and the two other inspectors, 
called for the purpose of examining him, they refused to grant 
him a certificate upon Che ground that he was intemperate. 
From this decision the trustees of district No. 3 appealed. 

By A. C. Flagg, March 23, 1829. By section 46 of the 
statute, it is made the duty of the inspectors to ascertain the 
qualifications of the teacher " in respect to moral character" as 
well as learning and ability. The fact that the teacher is an iur 
spector himself, and that he has had certificates before, does not 
vary his case ; he, as well as all other teachers, must be tested 
by his quaUfications and his moral character. He may have 
become intemperate since he was examined, or former inspec- 
tors may not have known the fact. The only question on 
this point should be, is he now addicted to intemperance ? If 
so, he is not a proper person to be continued as a teacher of 
your children. And in my opinion, the inspectors cannot be 
too rigid on this point. 



superintendent of common schools. 39 

(anonymous.) 

When fuel is furnished in kind, it must be apportioned according to the time 
each scholar has attended school. 

The question submitted to the Superintendent in this case, 
W£is whether each scholar should furnish an equal quantity of 
wood, without regard to the time he had attended school, or 
whether it should be apportioned according to the time of at- 
tendance : the district not having voted a tax to purchase fuel. 

By A. C. Flagg, March 24, 1829. By the 84th and 85th 
sections, the fuel is to be graduated according to the number of 
children sent to school. They are to pay in the same ratio that 
they pay for tuition, and this has been estabhshed as a just 
measure of apportionment. If the district requires an assess- 
ment according to property, they can then vote to provide the 
fuel by a tax upon the district. The apportionment by the 
scholar may in some cases operate severely ; but if a poor man 
is unable to pay tuition, and sends his child but half the term, 
ought he to be taxed as much for fuel as the person who is able 
to send three or four scholars for the same period, or for the whole 
time? It is undeniable that in hundreds of cases a person with 
a large number of children is unable to send them all to school, 
and he sends one or two out of four or five who ought to attend, 
and is thus compelled by his poverty, to make them take turns 
in getting a common school education. Would it be just for 
such a person to be charged as much for fuel as his more wealthy 
neighbor, who is abundantly able to keep all his children con- 
stantly in school ? Certainly not. 

The Trustees of school district No. in the town 

of Chester, ex parte. 

When a new district is formed, and a sum ot money is received as its proportion 
of the value of the school-house of the district from which it is taken, this 
sum must be applied to the erection of a school-house in the new district, and 
in reduction of the taxes of the persons on account of whose property it was 
received. 

A new school district ^vas formed in the town of Chester by a 
division of districts No. 1 and 2. A Mr. Mead was set off from 
No. 2, and the sum of $5 was adjudged by the commissioners of 
common schools to be due from that district to the new, on ac- 
count of the property of Mr. Mead, and as his proportion of the 
value of the school-house. The question submitted, was whether 
this sum was to be applied to his exclusive benefit. 

By A. C. Flagg, March 30, 1829. By section 69, when a 
new district is formed from an old district having a school- 
house, a proportional part of the value of the house is to be paid 



40 CASES DECIDED BY THE 

to the trustees of the new district, and by them applied to the 
erection of a new school-house. But if a tax is to be raised in 
addition for the school-house, the moneys received from the old 
district " shall be allowed to the credit of the inhabitants who 
were taken from the former district in reduction of any tax that 
may be imposed for the erection of a school-house." The pro- 
portion ascertained by the commissioners, according- to sec. 68, 
as coming to the new 'district as the proportion of Mr. Mead's 
property, is ^5. Therefore in making your assessment of the 
tax to build a school-house, you must credit Mr. Mead with this 
$5, and the sai oe course must be taken with all those who were 
set off from the other district. If the amount credited exceeds 
the assessment of Mr. Mead, or any other individual, that ex- 
cess goes for the benefit of the whole district ; the trustees being 
required to apply it for the procurement of a school-house, and as 
there is no provision to apply any of it to the use of individuals 
except in reduction of taxes for the school-house, it cannot be 
paid to the individual. 

The Trustees of school district No. in the town 

of Martinsburgh, ex parte. 

Unless some person claims a reduction of his valuation, trustees are not reouired 
to give notice of the assessment of a tax. 

This was an application from the trustees of school district 

No. in the town of Martinsburgh, for the opinion of 

the Superintendent as to the necessity of giving notice of their 
intention to assess a tax, in order that those who intended to 
claim a reduction in the valuation of their property, might come 
in and avail themselves of the provisions of the statute in such 
cases. 

By A. C. Flagg, April 20, 1829. A taxable inhabitant can 
claim a reduction before the trustees make out the assesaiient ; 
because by sec. 79, the valuation is to be taken from the assess- 
ment roll of the town. It is therefore from the assessment o( 
the town that he claims a reduction. When such claim is made, 
the trustees are to proceed in the same manner as the assessors 
are required to proceed, as you will see by vol. 1 R. S. page 392. 
You are to make out the assessment roll, leave it with one of 
the trustees for 20 days, giving notice thereof in 3 or more pla- 
ces in the district ; and then the tmstees must meet agreeably to 
sec. 82, same page, and adjust the assessment. 

If no person claims a reduction, then the trustees can make 
out the assessment ajL ©nee, conforming to the town assessment. 
In such case the notices are not required; the inhabitants " know 
how £ nd for what they pay their money," because they vote the 



SUPERINTENDENT OF COMMON SCHOOLS. 4i 

tax for the specific object, before the trustees are authorized to 
make the assessment. 

The Trustees of school district No. in the town 

of Portage, ex parte* 

If the trustees of a school district expend money for repairing the school-house 
without being authorized by the inhabitants, a tax to cover the expenditure 
may be collected, if voted at a subsequent time. 

The trustees of school district No. in the town of Por- 
tage, finding the school-house out of repair, expended the sum 
of fifteen dollars for the purpose of putting it in order, without 
any authority from the inhabitants, and paid the amount out 
of their own pockets. At the next annual meeting of the 
district, the facts were submitted to the inhabitants, who voted a 
tax equal to the amount expended by the trustees, for the pur- 
pose of reimbursing them. By mistake the tax was not collect- 
ed within the time prescribed by law, and a special meeting 
having been called, the same amount was again voted for the 
same purpose. Some of the inhabitants threatened to resist the 
collection of the tax upon the ground that there was no authority 
under the circumstances to vote it; and the opinion of the Su- 
perintendent was solicited with a view to an amicable adjust- 
ment of the difficulty. 

By A. C. Flagg, May 4, 1829. The tax voted under the 
circumstances set forth in the application is legal, and the col- 
lection of it is evidently just and equitable, and cannot be 
evaded. The district might have refused to vote the tax on the 
ground that the expediency of repairing the house should have 
been submitted to the meeting before it was done ; but having 
voted the tax, the district meeting has sanctioned the necessity of 
the repairs, and the propriety of the conduct of the trustees : the 
meeting had a perfect right to vote the tax, and it is the duty of 
the trustees to collect and pay it to those wlio have made the re- 
pairs for the benefit of the district, 

Amasa B. Gibson and others, of the town of Crown- 
point, ex parte. 

If school moneys apportioned to school districts cannot be recovered of the com- 
missioner who received them, the loss falls on the districts. 

In the year 1828, one of the commissioners of conunon 
schools of the town of Crownpoint received the school moneys 
set apart for that town ; but no part of the amount so received 
•was paid over to the school districts. This was an application 
to the Superintendent from some of the inhabitants of the town, 
to ascertain what remedy they had against the commissioner. 



42 CASES DECIDED BY THE 

By A. C. Flagg, May 4, 1829. If the old commissioners 
made an apportionment of the money, then the trustees can 
prosecute the commissioners, or the one who has the money, 
under the 90th section of the school law. This proceeding does 
not change the risk at all, for the districts lose the money if it is 
not recovered from the individual commissioner. If the money 
was not apportioned, it ought to have been paid over to the new 
commissioners ; and if withheld, the person so offending is liable 
to forfeit one hundred dollars, under section 38 of the school 
law. 

The Inspectors of Common Schools of the town of 
Ripley, ex parte. 

Inspectors of common schools must determine the degree of learning and ability 
necessary for a teacher. 

This was an application from the inspectors of common 
schools of the town of Ripley, for the direction of the Superin-- 
tendent with regard to the following question, viz : Whether 
any thing short of a knowledge of reading, writing, arithmetic, 
English grammar, and geography, should be deemed by them 
a sufficient qualification for a teacher, in order to entitle him to 
receive a certificate. 

By A. C. Flagg, May 6, 1829. The qualifications of teach- 
ers are left to the discrimination and judgment of inspectors. 
They give the certificate, and they ought to be satisfied that it 
is given to those only whose learning and ability fit them in all 
respects to instruct common schools. In revising the school 
law, the revisers inserted a provision that no candidate for teach- 
ing should be deemed qualified unless upon examination he 
should appear to be well instructed in " reading, orthography, 
penmanship, English grammar, geography, and arithmetic, in- 
cluding vulgar and decimal fractions." This provision however 
was stricken out by the legislature, and the whole matter is left 
to the discretion of the inspectors. It is certainly very desirable 
that teachers should be able to instruct in all the branches above 
enumerated. 

The Trustees of school district No. — in the town of 
Martinsburgh, ex parte. 

Trustees of school districts must give notice of the assessmentFof a tax in all 
cases where a reduction is claimed, or where the valuations of property can- 
not be ascertained from the last assessment roll of the town. 

This was a case in which a reduction had been claimed by 
one of the inhabitants of school district No. in the town of 



SUPERINTENDENT OF COMMON SCHOOLS, 43 

Martinsburgh, in the amount of his taxable property, a tax 
having been voted by the district. The reduction was allowed 
to the amount claimed, and the trustees proceeded to assess the 
tax, without giving the notice required by law. 

By A. C. Flagg, May 6, 1829. Trustees are to give notice 
as to assessments in two cases: 1st, when a reduction is claimed, 
and 2d, when the valuation cannot be ascertained from the as- 
scvssment roll of the town. You ask, why give notice, if the 
man claiming a reduction gets all the relief he wants? I an- 
swer, because every taxable inhabitant of the district is relatively 
interested in such reduction. Taxation to be just must be equal. 
The town assessment is evidence that, as between the inhabi- 
tants of a district, the assessment is proportionably just. If you 
deduct from one, you leave such deduction to be paid by all the 
rest of the tax-payers of the district : they are entitled to notice, 
and an opportunity to show that, in justice to them, a reduction 
ought not to be made in the assessment of the person complain- 
ing. When no notice is required, the assessment may be made 
immediately after the meeting closes, for in this case it is to be 
observed, that the relative value of all the property has been 
adjusted by sworn assessors, and this assessment thus made out, 
is to be adhered to unless the taxable property cannot be ascer- 
tained from such assessment roll, or unless a reduction is claimed. 
As to the assessment roll and tax-list : In towns, the assessors 
make out the assessment roll ; and the supervisors the tax-list 
after the amount levied on the town is ascertained. In districts, 
the trustees know the amount to be collected before hand, and 
they do in this matter what is done by assessors and supervisors 
both, in town matters. They first settle the assessment, if there 
is any question about the town assessment, and then apportion 
or carry out the tax against each name. If there are ten persons 
in your district, and all the property for which they are taxed in 
the town lies \vithin the bounds of the district, then the valua- 
tions are to be taken from the assessment roll of the town, (un- 
less some person claims a reduction,) and the tax-list may be 
made out without notice or delay. 

The Trustees of school district No. 19 in the town 
of Schoharie, ex parte. 

If Jtminor is chosen clerk of a school district, and he officiates in that capacity, 
his acts, so far as the public and third persons are concerned, are valid. 

In school district No. 19 in the town of Schoharie, a minor 
was chosen clerk at the annual meeting of the inhabitants. At 
a subsequent time a tax was voted to build a school-house at a 
special meeting, the notices for which were given by the clerk. 



44 CASES DECIDED BY THE 

Some of the inhabitants contended that the proceedings of the 
meeting were void, by reason of the non-age of the clerk, and 
tlie case was presented to the Superintendent for his decision. 
By A. C. Flagg, May 13, 1829. It is represented that in 
district No. 19, Schoharie, in which a tax has been voted and 
assessed for a school-house, some of the persons taxed object to 
paying, on the alleged ground that the clerk of the district was 
under age. It seems that he was chosen by the district, and al- 
lowed to officiate as clerk : his acts, so far as the rights of third 
persons and the public are concerned, are valid ; and in this case 
particularly, the non-age of the clerk is wholly unimportant, as 
the question is between the trustees and collector on the one 
hand, and the taxable inhabitants on the other.* 

Jo&eph SafTord and others, inhabitants of school dis- 
trict No. 2 in the town of Ballston, against tlie 
Commissioners of Common Schools of said town. 

The decisions of the Superintendent are final. 

If a school district is established by a decision of the Superintendent, it cannot 
be dissolved by the commissioners of common schools. 

The facts of this case are fully disclosed in the opinion of the 
Superintendent. 

By A. C. Flagg, May 16, 1829. In the case of the appeal 
of Joseph Safford and others from the decision of the commis- 
sioners of common schools of the town of Ballston, in dissolving 
district No. 2 and annexing the same to other districts, on the 
12th day of April, 1828 : It appears by the affidavit of EUsha 
Miller, a resident of said district No. 2, "that this division was 
unknown at the time it was made, to the deponent, and others 
aggrieved by the decision, as this deponent is informed and be- 
lieves, and that the new arrangement is not satisfactory to the 
inhabitants of either as it now stands. That previous to this 
being done by the commissioners, some of the inhabitants of 
these different districts now concerned, were present on or about 
the last Tuesday of March, 1828, and objected to its being done, 
and the deponent supposed it was given up, until some months 
after the deponent heard of the division being made." 

It appears also that notice of this appeal has been duly serv- 
ed on the commissioners of common schools, from whom no 
statement has been received in relation to the number of petition- 

* In the ease of Ring vs. Grout, 7 Wendell, 341, the Supreme Court were ot 
opinion that, although a collector of a school district ought to be a resident of the 
district, if the inhabitants " should confer the appointment on a non-resident, 
he would be an oiBcer de facto, go that his official acts would not make him a 
trespasser." 



SUPERINTENDENT OF COMMON SCHOOLS. 45 

ers for the dissolution of district No. 2, or the reasons which in- 
fluenced the decision complained of. 

It does not appear from the annual reports for several years 
that districts Nos. 4, 8, 10 and 11 required the additions made 
to them by the breaking up of district No. 2 ; nor does it appear 
that district No. 2 was dissolved on account of any inability to 
support a school. 

The appellants in this case ask for relief not only from the de- 
cision of the commissioners in 1828, but from a former decision 
of the Superintendent of Common Schools, made in 1823, in 
relation to districts 1, 2 and 11. As the former decision ol the 
Superintendent is thus brought under consideration, it becomes 
necessary to inquire and ascertain its bearing upon the contro- 
versy now under consideration. 

That decision, which was recorded in the town clerk's book, 
August 21, 1823, describes minutely the boundaries of districts 
No. 1, 2 and 11, and declares that the '• territory of district No. 2 
shall remain a district to be called number two." This decision 
was made on an appeal under the 7th section of the amended 
school act of 1822, which section authorizing such appeal, de- 
clares the decision of the Superintendent to be tinal. If the ques- 
tion which came up before the commissioners in April, 1828, was 
the same question which agitated the same territory in 1823, 
and was then the subject of an appeal, and was decided by the 
Superintendent, what authority had the commissioners to inter- 
fere with a question thus decided, and which decision is declared 
by the law to be final ? If the word final were construed to 
mean only that the question should not be carried up to a higher 
tribunal, it would not reach the main object for which the act of 
1822 was passed ; which was the establishment of a tribunal 
where on an appeal the controversies and litigations in districts 
should be finally settled and put at rest ; and that the parties 
should not only be protected from the expense of an appeal to 
the courts, but that the districts should not be again harassed 
by the same question at another meeting of the commissioners. 
That such w^as the main object of the 7th section of the act of 
1822, is evident from the language of the report in relation to 
said section, made by the Superintendent, viz., that this provi- 
sion was required in order to enable him "to put an end to the 
controversies submitted to his decision." 

The act of the commissioners of April 12, 1828, having rela- 
tion to the same question which had previously been decided by 
the Superintendent, is, in my opinion, void and of no effect. 

As to the question of restoring the old, boimds of districts No. 
1 and 2, inasmuch as that was acted upon and settled by a 
former Superintendent, five years since, under which decision 



46 CASES DECIDED BY THE 

school-houses have been erected, and district arrangements en- 
tered into in reference to the bounds established by that decision, 
I do not think it is expedient to do more at this time than to de- 
clare void the order of the commissioners of April, 1828. 

It is therefore decided, that the acts and doings of the com- 
missioners of common schools of the town of Ballston, on the 
12th day of April, 1828, in relation to the dissolution of district 
No. 2, and annexing the inhabitants of said district to districts 
No. 4, 8, 10 and 11, be and the same is hereby declared to be 
of no effect. 

(anonymous.) 

la making out a tax-list the names of the taxable inhabitants must be given. 
" The widow and heirs of A. B. deceased" is not a sufficient designation of the 
persons to be taxed. 

By A. C. Flagg, June 8, 1829. A tax made out against the 
'■• widow and heirs of A. B. deceased" is not a proper designation 
under the statute, which requires a list of the names. Suppos- 
ing the property to be owned or possessed by the widow after the 
decease of her husband, the trustees, according to section 76, (as 
well as sub. 3 of 75,) should have assessed the property to her 
by name. By sec. 88, the waiTant gives authority to collect 
"from every person in such tax-bill named, the sum therein set 
opposite to his name," &c. 

The Inspectors of Common Schools of the town of 
Guilderland, ex parte. 

Inspectors of common schools may refuse to give a teacher a certificate from 
their personal knowledge that his moral character is not good. 

Inspectors may annul a certificate on account of the immoral character of the 
teacher, although he may perform all his duties in school properly. 

This was an application to the Superintendent, from the in- 
spectors of common schools of the town of Guilderland, for the 
opinion of the Superintendent upon two questions presented to 
him. 

By A. C. Flagg, June 8, 1829. In judging of the moral 
character of a teacher, the inspector can certainly act from his 
own knowledge ; and if he knows that a person is not of good 
moral character, it is his duty to refuse to certify for him. The 
inspector certifies on his conscience, and although he cannot al- 
ways know whether the candidate is of good moral character, 
yet he should not certify when he knows the contrary. 

Your 2d question is, " can the inspectors annul a certificate, 
for immoral habits, provided the teacher performs all his official 
duties well during his school hours ?" I answer, they can. The 



SUPERINTENDENT OF COMMON SCHOOLS. 47 

moral character of the teacher is of the first importance, and if 
the inspectors have given a certificate to a person of bad habits 
from want of knowledge of his real character, they ought to 
correct the evil as soon as it is discovered. The teacher offers 
himself as one qualified according to law, and if his moral char- 
acter is not good, he is an impostor, and his certificate ought to 
be annulled. 

The Trustees of school district No. 3 in the town of 
China, ex parte. 

A school-house built by subscription may, if under the control of the trustees, 
be kept in repair by a tax on the property of the district. 

In the year 1827, a school-house was built by subscription in 
school district No. 3 in the town of China, and had been con- 
stantly occupied as a district school-house. In April, 1829, a 
tax was voted for the purpose of repairing it ; doubts having 
arisen as to the legality of the tax, the trustees made application 
to the Superintendent for his direction in the case. 

By A. C. Flagg, Julij 15, 1829. If the house in your dis- 
trict has been voted as the district school-house, and if it is oc- 
cupied without interruption as such, and is under the control of 
the trustees for that purpose, I can see no impropriety in collect- 
ing a tax for its repair. If it has been built by voluntary sub- 
scription, the district can at least afford to keep it in repair by a 
tax. If however it is so far under the control of individuals that 
they can prevent the trustees from using it, it would not be pru- 
dent for them to repair it. 

(anonymous.) 

All children residing in a school district may of right attend the district school. 
If a warrrant to collect a tax is renewed, the collector in office at the time of 

such renewal must execute it. 
All children attending the district school must be charged at the same rate for 

tuition, without regard to the studies pursued by them. 
If a parent is not wholly exempted by the trustees, he must be charged the full 

price of tuition. 

The following questions were presented for the decision of the 
Superintendent : 

1st. Can the trustees refuse admittance to any child in the 
district ? 

2d. Can they renew the warrant to the old collector, and col- 
lect dues of last year ? 

3d, Have they a legal right to make a difference in tuition 
between scholars studying different branches? 

4th. Can they charge different sums for studying the same 



40 CASES DECIDED BY THE 

branches, between maximum and minimum, having regard to 
the ability of the parent, or must they charge the full price or 
nothing? 

By A. C. Flagg, July 16, 1829. To your first question, I 
answer that the trustees cannot refuse admittance to any child 
whose residence is in the district, if the child complies with the 
reasonable and proper regulations of the school. 

2d. The trustees for the time being can renew a warrant is- 
sued by themselves or their predecessors ; but the warrant must 
be executed by the new collector, or the one who is collector for 
the time being. 

3d. All the scholars in the district school naust be charged at 
the same rate. By sec. 75, sub. 12, the trustees are required 
to ascertain by an examination of the school lists, the "number 
of days for which each person shall be hable to pay for instruc- 
tion, and the amount payable by each." And by subdivision 8 
of the same section, they are to pay the public money for teach- 
ers' wages, so far as it is sufficient, and to collect the residue 
"from all persons liable therefor." This hability, it seems by the 
law, is to be graduated according to the number of days sent by 
each person. The same principle of graduation is established 
in relation to fuel, by sec. 85, which provides that the proportion 
of fuel which each person shall be liable to furnish shall be de- 
termined " according to the number of children sent by each." 
By a vote, however, it may be graduated according to property. 

4th. The trustees must charge the same rates of tuition to 
all the inhabitants of the district alike, without reference to the 
ability to pay, or the studies pursued, unless they think proper 
to exempt them wholly. The public money (by sec. 75, sub. 8) 
is required to be paid to the teacher in satisfaction of the total 
amount of his claim, and necessarily is shared alike by all who 
have sent to school, ^vithout reference to the ability of the pa- 
rent ; and the residue is collected on the principle stated in the 
above answer to question No. 3. , 

The Commissioners of Common Schools of the town 
of Fabius, ex parte. 

The certificate of the commissioners that more than four hundred dollars is ne- 
cessary for a school-house, should be given before the additional sum is voted. 

This was an application for the opinion of the Superintendent 
in a case where a school district had voted a tax of more than 
$400 for the erection of a school-house, and afterwards applied 
to the commissioners for the certificate required by law when a 
larger sum than $400 is to be raised. 



SUPERINTENDENT OF COMMON SCHOOLS. 49 

By A. C. Flagg, July 17, 1829. You inquiie whether the 
opinion of the commissioners that a greater sum than $400 is 
required for a school-house, should be obtained before, or whether 
it would answer if obtained after the vote of the district? In 
my opinion, it should be obtained before the vote, to legalize the 
raising of more than $400. To justify the assessment and col- 
lection of a tax, the district meeting must have authority to vote 
that tax. Without the certificate of the commissioners, where 
is their authority to vote a tax for a school-house of more than 
$400 ? It is not to be found- Section 64 expressly says, '' no 
tax to be voted," (fcc, shall exceed the sum of $400 unless 
the commissioners shall certify in writing their opinion that a 
larger sum ought to be raised, and shall specify the sum. Un- 
til this certificate is made, the district meeting is not vested with 
the requisite authority to pass the vote for a greater sum than 
$400. 

The Trustees of school district No. 11 in the town 
of Schodack, ex parte. 

If an annual meeting in a school district is neglected, the trustees hold over until 
the next annual meeting, and until others shall be elected in their places. 

Accidental vacancies in district offices may be filled at special meetings called 
by the trustees. 

In April, 1827, the annual meeting of school district No. 11 
was held, and district officers were regularly elected. In April 
ci the years 1828 and 1829, the clerk of the district neglected 
to give notices for the annual meeting, and there was no choice 
of officers in either year at the usual time. In July, 1829, a 
special meeting of the inhabitants was "called by the trustees 
who were elected in April, 1827, and who had continued to of- 
ficiate in that capacity during the intermediate time ; doubts 
having arisen as to their right to call a }neeting of the inhabi- 
tants, or to act as trustees, all proceedings were suspended, and 
the case was submitted to the Superintendent for his decision. 

By A. C. Flagg, July 23, 1829. By sec. 70, district ofii- 
cers hold their offices for one year, " and until others shall be 
elected in their places.*' Under this latter provision the district 
officers hold over in case the annual meeting is neglected or al- 
lowed to pass without a choice of officers. The authority to 
hold over and to exercise the duties of the offices, is as distinctly 
recognized by sec. 70, as it is in cases of civil offices by chap. 
328, entitled " An act to prevent vacancies in civil offices," pass- 
ed Nov. 27, 1824,* under which law persons have exercised the 

*Sec. 9, page 117, vol. 1, R. S. 
4 



50 CASES DECIDED BY THE 

duties of various offices, such as surrogates, judges, (fee, for years 
after the term for which they were appointed had expired. 

The trustees of No. 11 had authority to call district meetings, 
they having held over under sec. 70. If there are vacancies in 
any of the offices, they can be filled at a special meeting. If 
not, the appointment of officers must be at the annual meeting 
in April. 

The Trustees of school district No. in the town 

of Salina, ex parte, 

A non-resident owner occupying a lot by his agent is taxable in the same man- 
ner as though he resided in the district. 

This was an application for the opinion of the Superintendent 
in a case^ the facts of which are fully stated in his answer. 

By A. C. Flagg, August 15, 1829. You inquire whether a 
non-resident of a district is to be taxed for the cleared land on 
the whole lot, under the following state of facts: 

" A person not living in the town owns within the district a 
military lot of 550 acres. There are 60 acres improved on it 
which the owner cultivates by his agents, who hve on the lot. 
The agents have families, and are of course inhabitants of the 
district." 

You are entirely correct in your opinion that the owner is tax- 
able under the 77th section, and this, too, "in the same manner 
as if he actually resided in the district." 

By the old law cultivated farms belonging to non-residents 
were not taxable for school purposes : the 78th section is new, 
(see " alterations" p. 40 of the new act) and was designed to 
reach such lands as are cultivated and improved, but not occu- 
pied ; and in such cases, and such only, the cultivated or cleared 
part of a lot is assessed, and that which is wild, or not cleared, 
is exempt. 

The distinction is, that where there is a family residing on 
the lot, and requiring school accommodations in the district, the 
whole lot shall be taxed, the same as if the owner resided upon 
it. But where there is no resident to enjoy these accommoda- 
tions, and where the owner resides in another district, he shall 
only be assessed for the number of acres actually cultivated. 

Exemption, under the 78th section, as you remark, would be 
very clear, were there not a resident agent upon the lot. But 
this makes it equally clear that the owner is liable to taxation 
for the whole 550 acres, under the 77th section. 



SUPERINTENDENT OF COMMON SCHOOLS. 51 

Moses Tyler and others, .inhabitants of school dis- 
trict No. 2 in the town of Watervliet, ex parte. 

Trustees of school districts cannot allow any part of the district school-house to 
be occupied excepting for the purposes of the district school. 

In school district No. 2 in the town of Watervliet, the trus- 
tees rented an upper room in the school-house to a woman for 
the purpose of keeping a private school. In consequence of this 
proceeding, objections were raised by several of the inhabitants, 
upon the ground that the district school was disturbed, and that 
the trustees had no authority to appropriate any part of the 
house to such a use. 

By A. C. Flagg, August 17, 1829. In district No. 2, Wa- 
tervliet, a person is allowed to occupy an upper room of the 
school-house ; the regular school is disturbed, and many of the 
inhabitants of the district are thereby dissatisfied. The trustees 
have no authority to place any person in the school-house, ex- 
cept the teachers employed by them for the district, and they 
ought not to allow a proceeding which is calculated to occasion 
divisions in the district, when they have the power of applying 
the remedy. The trustees have the custody of the school-house; 
but in exercising their authority they must adhere to the law. 
The custody is given to them for a certain purpose which the 
law points out, and they are responsible for any abuse of their 
authority. 

The Trustees of school districts No. 7, 9, 10 and 13, 
in the town of Dover, against the Commissioners 
of Common Schools of said town. 

If a bank fails, and the commissioners of common schools have in their hands 
bills of the bank, received as school moneys, the loss falls on the school dis- 
tricts. 

This was an application to the Superintendent for his decision 
upon a case submitted. The material facts are disclosed in the 
opinion of the Superintendent. 

By A. C. Flagg, August 18, 1829. The treasurer gave the 
commissioners of common schools of the town of Dover a check 
on the Middle District Bank in March last, for the amount of the 
school moneys due the town. The commissioners took the bills 
of that bank, and on the 4th of April the money w as apportion- 
ed to the districts, and paid to such trustees as called for it, the 
bills being then in good credit. Some of the trustees neglected 
to call for their apportionment until the bank failed, and now re- 
fiise to take the bills. The biUs on hand are the identical bills 
received as the school money and apportioned to the districts, 



52 



CASES DECIDED BY THE 



and the commissioners ought not to be held responsible to make 
good the failure. The law fixes the day for apportioning the 
money, which is a sufficient notice to the trustees to call for 
it ; if they neglect to do so, and the money is burnt up, or be- 
comes valueless by the failure of the bank, the commissioners 
ought not to suffer. The loss must fall on the districts or the 
trustees. 

Nicholas Chesebro and others, inhabitants of school 
district No. 8 in the town of Worcester, against 
the Commissioners of Common Schools of said 
town. 

In altering school districts, notice ought to be given to the parties in interest, 

although such notice is not required by law. 
Two teachers may be employed in a school district, .if it is necessary ; but a 

high school ought not to be set up by the trustees without the concurrence of 

the inhabitants. 

This was an appeal to the Superintendent under circumstan- 
ces which are fully disclosed in his decision. 

By A. C. Flagg, Aixgnst 20, 1829. In the case of the ap- 
peal of Nicholas Chesebro and others, from the decision of the 
commissioners of common schools of the town of Worcester, it 
appears that on the 9th of May, 1829, the commissioners divided 
district No. 8 in said town, and formed a new district, which is 
designated as No. 6. District No. 8 had 91 children between 5 
and 16 before the division, 55 of whom remain in No. 8, and 36 
in No. 6. 

The Superintendent is called upon in this case to annul the 
doings of the commissioners, and to consolidate the district which 
tliey have divided. 

1st. On the ground that the appellants were not notified of 
the division. 2d. As being detrimental to education ; a majority 
being ia favor of having a large school-house, and two teachers 
employed, one for large and one for small scholars. 3d. That 
the old district was sufficiently compact. 

As to the first objection, it was wrong in the commissioners 
not to give full notice to both parties. A neglect to do so does 
not affect the legal formation of the district, as the statute does 
not in terms require that notice to the parties interested, which 
it was reasonable to expect commissioners acting impartially be- 
tween neighbors would always give. 

As to the 2d objection — if the scholars in the district are so 
numerous as to require two teachers, this would be a strong rea- 
son in favor of two districts. If the inhabitants of a large dis- 
trict can act in harmony, and establish a high school, or other- 



SUPERINTENDENT OF COMMON SCHOOLS. 53 

wise elevate the character of the common school, it would un- 
doubtedly be useful to the cause of education ; but if this unity 
of sentiment cannot be produced, they cannot have, under the 
law, any other than a common school. 

By the law it is made the duty of the commissioners to divide 
their town into a convenient number of districts; they have the 
best means of judging in this matter from their local knowledge, 
and unless it appears that they have acted partially, or from 
some improper motives, great weight must be given to their de- 
cisions. In this case, district No. 6, with 36 scholars, might 
seem to have the greatest reason to complain of the division. If 
its inhabitants are willing to erect a school-house at their own 
expense, (which they must do, as the appraisement of the old 
house, if of any value, can only be made at the time of the di- 
vision,) and support a school, the inhabitants of No. 8, with 55 
scholars, cannot be considered the aggrieved party. The appeal 
is dismissed. 

The Inspectors of Common Schools of the town of 
Cobleskill, ex parte. 

Three inspectors must sign a certificate of qualification for a teacher, in order to 
give it validity. 

This was an application from the inspectors of common schools 
of the town of Cobleskill, for the opinion of the Superintendent 
as to the validity of a certificate of qualification for a teacher 
signed by two inspectors, a third, who was present at the exa- 
mination of the teacher, having declined signing the certificate. 

By A. C. Flagg, September 15, 1829. Section 45 of the 
school act says, "it shall be the duty of the inspectors of com- 
mon schools, or any three of them, at a meeting called for that 
purpose," to examine teachers, &c. ; and sec. 47 says if the in- 
spectors shall be satisfied they shall give a certificate, &c. Again, 
sec. 48 says " the inspectors, or any three of them, may annul" 
such certificate. It is clear from these sections that three inspec- 
tors are necessary to grant, and the same number to annul a 
certificate. The certificate ought to be signed by three inspectors. 

The Trustees of school district No. 1 in the town of 
Ballston, ex parte. 

Trustees of school districts must render an account of their receipts and expen- 
ditures, at the expiration of their office : it is their duty also to give such rea- 
sonable explanations as may be required. 

This was an application by the trustees of school district No. 
1 in the town of Ballston, for the direction of the Superintendent 



54 CASES DECIDED BY THE 

as to the manner of accounting to the district at the expiration 
of their office. 

By A. C. Flagg, October 15, 1829. The trustees, on the 
expiration of their office, are to render a just and true account 
in writing of the receipts and expenditures by them, see sec. 98 
of school act. They ought also to give any reasonable expla- 
nations to the meeting in relation to their expenditures. 

Isaac Sherman, Collector of school district No. 4 in 
the town of Spencer, against the Trustees of said 
district. 

Collectors are entitled to 5 per cent, on all sums actually collected and paid over 

by them; but not on sums paid to teachers for tuition. 
Trustees are not authorized to receive moneys for taxes, or on rate-bills; but 

payments may be made to teachers for their v*^ages, and on sums so paid, the 

collector loses his fees. 

This was a case submitted by the parties for the decision of 
the Superintendent; the trustees of district No. 4 in the town of 
Spencer having received part of a tax from the persons on whom 
it had been assessed, and left the remainder to be collected by 
the collector, who claimed his fees on the amount so received by 
the trustees. 

By A, C. Flagg, October 15, 1829. When a tax is assessed 
for a school-house, the collector is entitled to 5 per cent, on the 
whole amount. In making out the tax-list the trustees are re 
quired, sec. 75, sub. 4, to annex to it a warrant" "for the collec- 
tion of the sums in such list mentioned, with 5 cents on each 
dollar thereof, for his (the collector's) fees." On every dollar 
which is collected and paid over by him, the collector is entitled 
to his fees, (sec. 104.) If he is so unfortunate as not to collect 
the entire tax, he loses his fees on the amount not collected. It 
would be manifestly unfair to allow the trustees to collect from 
all who pay promptly, and leave to the collector his 5 per cent, 
only on the debts due from the others. Besides, who is entitled 
to the five per cent, if the collector is not ? It must be put in the 
tax-list, and it is to be considered as the fair perquisite of the col- 
lector for his trouble and responsibility. 

The law is silent as to the payment of taxes to trustees, but 
authorizes payments to teachers for their wages, sec. 75, sub. 8. 
When those payments for wages are voluntarily made to the 
teacher by the patrons of the school, the persons thus paying 
save the 5 per cent, for 'collector's fees, as the law recognizes 
such payments, and authorizes the trustees to make out a war- 
rant against such only as are liable for the residue of the teach- 
er's wages. If any part of the rate-bill is not collected, the col- 
lector loses his fees on the amount unpaid ; the 104th section 
limiting his fees to the amount " collected and paid over by him." 



SUPERINTENDENT OF COMMON SCHOOLS. 55 

The Commissioners of Common Schools of the town 
of Lawrence against the Commissioners of Com- 
mon Schools of the town of Hopkinton. 

If a town is divided, and a new town erected, the latter is entitled to an equi- 
table share of the school moneys apportioned to the former, unless the law 
shall have otherwise provided in the particular case. 

On the 21st day of April, 1828, an act was passed dividitig 
the town of Hopkinton, and erecting the town of Lawrence, by 
setting off a portion of the former town. In the ensuing spring, 
the commissioners of common schools of the town of Hopkinton 
received the whole amount of school moneys apportioned to that 
town, and, upon the alleged ground that the agent of the peti- 
tioners for the new town had stipulated that it should, if erected, 
relinquish its claim to any portion of those moneys, the commis- 
sioners proceeded to distribute the whole amount so received 
among the districts in the town of Hopkinton, excluding from a 
participation in the distribution all the districts comprised within 
the territory set off to form the town of Lawrence. From this 
proceeding the commissioners of the latter town appealed. 

By A. C. Flagg, November 25, 1829. The districts within 
the town of Lawrence should have been included by the com- 
missioners of Hopkinton in the distribution of the school moneys 
made by them. Whatever the petitioners for the new town, or 
their agent, may have stipulated with respect to a relinquish- 
ment of their portion of the school moneys, such stipulation has 
no force whatever, the law erecting the new town being silent 
on the subject. The inhabitants of the school districts in the 
territory set off have their equitable rights, which cannot be bar- 
tered away by an agent to procure the erection of a new town. 

The inhabitants of school district No. in the 

town of Southampton against the Trustees of said 
district. 

The public money can only be applied to the benefit of such schools as are es- 
tablished by trustees of school districts. 

This was an appeal by certain inhabitants of school district 

No. in the town of Southampton from the decision of the 

trustees of said district, in refusing to allow any part of the pub- 
lic moneys to a school set up by said inhabitants without the 
authority of the trustees. The alleged cause for establishing the 
school was that the school-house was not sufficiently capacious 
for the accommodation of all the children residing in the district 

By A. C Flagg, December 14, 1829. The public money 
can only be apportioned and paid to such schools as are establish- 



56 CASES DECIDED BY THE 

ed by the trustees, and are under their direction. If the district 
sciiool-house is too small, then the inhabitants by a vote must 
tax themselves to enlarge it, or to hire additional rooms, so as to 
accommodate all who wish to attend the district school. When 
this is done, the trustees are bound to furnish tuition for all at 
the same rate, and to give all an equal share of the school mo- 
ney. But it must be managed by the trustees of the district, 
and be in effect one school. If a portion of the inhabitants of 
the district set up an independent school, the statute does not al- 
low them any share of the fund. The control of the trustees 
over all the schools in the district must be maintained, or all 
system and subordination would be at an end. 

The Trustees of school district No. 19 in the town 
of Pompey, ex parte. 

Indigent persons may be exempted from' the payment of school bills, whether 
there is public money to be applied to the term or not. 

The trustees of school district No. 19 in the town of Pompey. 
at the close of a term of instruction, exempted several of the in- 
habitants of the district, on account of their indigent circum- 
stances, from the payment of the teacher's wages. The public 
money having been expended, there was none remaining on 
hand to be applied to the term referred to. Objections having 
been made to the authority of the trustees to make exemptions in 
such cases, application was made to the Superintendent for his 
advice and direction. 

By A. C. Flagg, December 18, 1829. You can "exempt 
from the payment of teachers' wages such indigent persons 
within the district as you may think proper," and this whether 
you have public money in your hands to pay or not. 

The intention of this provision of the law is, that children 
whose parents are unable to pay for their schooling shall be fur- 
nished with the means of a common school education, and if 
the persons are proper subjects of exemption, the fact that there 
is no public money to lighten the exaction upon them, rather in- 
creases than lessens the obligation to exempt them. If they 
could not pay the balance when half could be discharged by the 
public money, then they certainly could not pay the w^iole 
school bill where there is no relief from that source. 



SUPERINTENDENT OF COMMON SCHOOLS. 57 

Dean W. Tyler, one of the Commissioners of Com- 
mon Schools of the town of Mount-Morris, against 
his associates in office. 

Appeals must be made by persons aggrieved. 

This was an appeal by one of the commissioners of common 
schools of the town of Mount-Morris from the decision of his 
associate commissioners, with whom he differed in opinion with 
respect to a question submitted to them by one of the school dis- 
tricts within their jurisdiction. 

By A. C. Flagg, December 26, 1829. It appears by the 
statement of facts submitted in this case, that the appellant was 
one of three commissioners of common schools who were called 
upon to decide a question in regard to the school-house in dis- 
trict No. 6, and that he differed in opinion with the other two 
commissioners as to the decision made, and that he now appeals 
from the decision of his colleagues. It does not appear that he 
is an inhabitant of district No. 6, or that he is affected by the 
decision made. The appeal must be made by a person aggriev- 
ed, before the Superintendent can take cognizance of it, and a 
mere difference of opinion among the commissioners is not a 
ground of grievance to any one of them. 

(anonymous.) 

A school month is twenty-six days, exclusive of Sundays. 
A quarter of a year is ninety-one days.* 

By A. C. Flagg, Jaimary 20, 1830. The Revised Sta- 
tutes, (vol. 1, p. 606,) provide, that whenever the term mouth 
is used in any contract, it shall mean a calendar and not a lunar 
month; and that ninety-one days shall be considered a quarter 
of a year. Twenty six days will, therefore, constitute a school 
month, being the average number of working days, after de- 
ducting Sundays. If the school is dismissed on the afternoon of 
Saturday, the teacher is not required to make up the time after 
the expiration of his month ; and if he keeps the whole day, he 
does not gain time thereby, but must continue his school until 
the month is fully ended. 

• See decision of Feb. 11, 1833, by John A. Dix, for the number of days 
to be taught in a quarter. 



58 CASES DECIDED BY THE 

The Commissioners of Common Schools of the town 
of Potsdam, ex parte. 

Children attending an academy are to be numbered in the reports of the trustees 
of school districts, if their parents reside in the district in which the academy 
is situated; but not otherwise. 

This was an application to the Superintendent of Common 
Schools for his direction in the following case. The St. Law- 
rence academy was included within the limits of one of the 
school districts in the town of Potsdam, and among the children 
attending it were several, whose parents resided in the district, and 
others, whose parents were non-residents of the district, but who 
were boarded within it for the sole purpose of attending the acade- 
my. The question submitted was whether either or both of 
these classes of children should be enumerated and included by 
the trustees of the school district in their annual report. 

By A. 0. Flagg, January 22, 1830. Section 92, sub. 4^ 
makes it the duty of trustees, to include in their annual report, 
"the number of children residing in the district on the last day 
of December." Children attending an academy, whose parents 
reside in the district, are to tee included in the district report. — 
Scholars boarding in the district and attending the academy, 
whose parents or guardians reside out of the district, are not to 
be enumerated in the report of the trustees of the district. The 
residence of the parent is the residence of the child; and board- 
ing the child in another district to get an education, does not 
change its residence. 

The Trustees of school district No. 2 in the town of 
Concord, against A. B. an inhabitant of said dis- 
trict. 

A taxable inhabitant of a school district may send to school any child actually 
living with him. 

This was a case submitted for the decision of the Superinten- 
dent upon a statement of facts agreed to by the parties. A. B. 
a taxable inhabitant of school district No. 2 in the town of Con- 
cord, had residing with him a boy, whose father resided in anoth- 
er district. The boy was not boarded with A. B. but was treated 
in all respects as one of his own family, and worked on his farm 
like his own children. The trustees, deeming the boy a tempo- 
rary resident of the district, resolved to exclude him from the 
school; but by agreement, the case was referred to the Superin- 
tendent for his decision. 

By A. C. Flagg, January 27, 1830. The public money 
is to be apportioned among the children residing in the district. 



SUPERINTENDENT OP COMMON SCHOOLS. 59 

A person who pays taxes and is a resident of your district, ought 
to be allowed to send to school any children actually living with 
him as members of his family. 

The Trustees of school district No. 1 in the town of 
Milton, against John Kelly. 

The Superintendent of Common Schools will not take cognizance of controver- 
sies in school districts, in respect to which the parties have commenced liti - 
gation in the courts. 

This was an appeal to the Superintendent for his interposition 
in a case, in which a suit had been brought, and was then 
pending, before one of the justices of the peace of the town, in 
which the controversy arose. 

By A. C. Flagg, January 27, 1830. The Superintendent 
has no control over the proceedings of justices of the peace. If 
the trustees or inhabitants of a district commence litigation in 
the courts, in relation to school affairs, they must follow the or- 
dinary charmel of the courts, as prescribed for all other cases. 

The Trustees of school district No. 8 in the town of 
Hounsfield, against the Commissioners of Com- 
mon Schools of said town. 

If trustees consent verbally to an alteration in their school district, the proceed- 
ings will not be set aside for want of a written assent. 

In this case, the commissioners of common schools in the 
town of Hounsfield, divided school district No. 8 in said town 
and formed a new district. The trustees of school district No. 8 
were present, and made no objection to the alteration. An ap- 
peal was afterwards presented to the Superintendent upon the 
sole ground that the commissioners should have procured the 
written consent of the trustees before making the alteration. 

By A. C. Flagg, January 30, 1830. The verbal consent 
of trustees to an alteration of their school district is sufficient. — 
If they are present when the commissioners make the alteration 
and do not object, they must be considered as consenting to it, 
and the proceedings will not be disturbed. 

The Inspectors of common schools of the town of 
Monroe, ex parte. 

A teacher should not be questioned by the inspectors as to his religious opinions: 
but a person who openly derides all religion should not be employed as a 
teacher. 

This was an application to the Superintendent from the in- 
speetors of common schools, of the town of Monroe, for instruc- 



60 CASES DECIDED BY THE 

tions as to their right to question a teacher with respect to his 
religious opinions, in order to determine whether his moral cha- 
racter was such as to entitle him to a certificate of qualification. 

By A. C. Flagg, February 1, 1830. In relation to the 
moral character of the teacher, much is left to the discretion of th« 
inspectors. They must be satisfied that it is good, because tliey 
have to certify to its correctness. On this point what would be 
satisfactory to one man might be unsatisfactory to another. — 
Every person has a right to the enjoyment of his own religious 
belief without molestation: and the inspectors should content 
themselves with inquiries as to the moral character of the teacher; 
leaving him to the same liberal enjoyment of his religious belief 
that they ask for themselves. 

If a person openly derides all religion, he ought not to be a 
teacher of youth. The employment of such a person would be 
considered a grievance by a great portion of the inhabitants of 
all the districts. 

The Trustees of school district No. in the town 

of Winfield, ex parte. 

A tax voted to repair a school-house should not be collected, if the district has 
no title to the site, and the owner has forbidden the repairs to be made. 

This was an application for the direction of the Superinten- 
dent in a case in which a school-house had been erected, by 
the sufferance of the owner, on land to which the district had 
no title : the land, after passing through the hands of a number 
of persons, came into possession of a purchaser, who was desir- 
ous of appropriating the site of the school-house to his own use. 
The house having become dilapidated, the owner of the land for- 
bade any repairs to be made on it so as to render it habitable for 
common school purposes. A tax had been previously voted, and 
the question submitted was whether it should be collected and ex- 
pended as had been intended. 

By A. C. Flagg, February 16, 1830. It appears that your 
district built a school-house by consent of the owner on land for 
which nOjtitle was obtained; that this land has passed into other 
hands, and that the present owner forbids the district the use 
and occupancy of the house, or at least forbids their repairing it 
for use. There is no redress in this case. The district is in the 
situation of a person who builds his house on land which does 
not belong to him. 

The tax voted to repair the house should not be collected, a» 
it cannot be safely expended for the purpose. 



SUPERINTENDENT OF COMMON SCHOOLS. 61 

The Trustees of school district No. in the town 

of Winfield, ex parte. 

A school-house may be kept in repair by tax, if the districtihas a lease of the 
land on which it stands. 

This was an application for the opinion of the Superintendent 
with regard to the propriety of expending money for repairing 
a school-house, in a case where the district had obtained from 
the owner of the land, on which it stood, a lease of the site for 
so long a time as the house should be used for common school 
purposes. 

By A. C. Flagg, March 6, 1830. Where the district has a 
lease from the owner of the land on which the school-house 
stands, to use it as long as the district may require it for a school- 
house, a tax to repair it is legal and proper. It is in all cases 
desirable that the fee of the land should be vested in the trustees, 
but this does not affect the question of collecting the tax, for this 
may be done even to pay the rent of a school room. 

The Trustees of school district No. 3 in the town of 
Redhook, ex parte. 

If a teacher cannot procure a certificate of qualification from the inspectors^ his 
wages may be collected of those who send children to school, and fuel may 
be provided by tax, if a tax is voted for the purpose. 

This was an application for the direction of the Superinten- 
dent in a case, in which the inspectors, after examining the 
teacher, had refused to give him a certificate of qualification. In 
consequence of such refusal, some of the inhabitants of the distiict 
denied the right of the trustees to collect his wages, and the right 
of tlve district to vote a tax to provide the school with fuel. 

By A. C. Flagg, March 17, 1830. Whether the teacher 
has a certificate or not, there can be no doubt of the right to 
collect a tax for fuel, when voted by the district. The trustees 
cannot pay the public money to a teacher who is not legally 
quaUfied, but they can collect his wages of those who send to 
school, by warrant, and the fuel can be provided by a tax upon 
property, if voted to be so furnished by the district. 

(anonymous.) 

Land occupied by a minister of the gospel, as tenant, cannot be taxed unless its 
value exceeds $1,500. 

By A. C. Flagg, Api^il 10, 1830. By the Revised Statutes 
relative to the assessment and collection of taxes, a minister of 
the gospel is entitled to exemption from all taxes for real estate 
to the amount of $1,500, "when occupied by him." The mi- 



62 CASES DECIDED BY THE 

nister being a tenant on Mr. Remer's land, it could not be as- 
sessed to Mr. R., and therefore is exempt under the statute for 
the assessment and collection of taxes. 

(anonymous.) 

If a district directs the public moneys to be divided, the vote should be passed 
during the year in which the moneys are to be applied. 

By A. C. Flagg, April 19, 1830. It is made the duty of 
the trustees, by sec. 75, sub. 9, to divide the pubKc moneys into 
not exceeding four parts, " whenever authorized by a vote of 
their district," and to apply one portion to each term, during 
which a school shall be kept. The vote as to the manner of 
applying the money, should be passed during the year in which 
it is to be expended. The trustees are annually elected, and this 
vote must be considered as an instruction to each set of trustees 
by the district meeting. If no vote is passed, then the manner 
of applying the public money is left to the discretion of the 
trustees. 

The Trustees of school district No. in the town 

of Colesville, ex parte. 

Trustees have the exclusive right of employing teachers. 

At the annual meeting in school district No. '■ in the town 

of Colesville, a vote was passed directing the trustees to employ 
a female teacher. The trustees disregarded the direction, and 
engaged a male teacher; and the opinion of the Superintendent 
was solicited as to the propriety of the proceeding. 

By A. C. Flagg, April 26, 1830. The trustees are empow- 
ered by the statute to employ all teachers for the district. They 
should employ qualified teachers; for to such only can they pay 
any part of the public money. If in doing this, they can con- 
form to the wishes of the district, they ought to do so ; but if 
the district votes to employ an incompetent teacher, the trustees 
should not regard the vote. The inhabitants of the district 
designate the persons who shall be trustees ; and the persons thus 
designated are invested by the law with certain powers, for the 
faithful and conscientious discharge of which they alone are re- 
sponsible, and with which the district cannot properly interfere. 



SUPERINTENDENT OF COMMON SCHOOLS. 63 

The Commissioners of Common Schools of the town 
of Farmington against the trustees and inhabitants 
of school district No. 11 in said town. 

The vote of a district meeting declaring the district dissolved has no binding 

force. 

This was an application to the Superintendent for his decision 
on a statement of facts agreed to by the parties, in which the 
right of a district to interfere with its own organization by a 
vote of the inhabitants was asserted on the one hand and denied 
on the other. 

By A. C. Flagg, A'pril 27, 1830. The proceedings of a dis- 
trict meeting, declaring the district dissolved, has no binding force 
whatever. The commissioners can alter, modify, and even an- 
nul a district; but in doing this, they must attach the inhabi- 
tants thereof to some other district. A district meeting has no 
power over this matter. 

The Trustees of school district No. 5 in the town of 
Jamestown, ex parte. 

If a warrant to collect a tax is made out under the seal of the trustees, as requir- 
ed by lavv', the renewal may be without a seal. 

District No. 5 in the town of Jamestown having been duly 
formed, a tax was voted to build a school-house, the tax-list was 
made out, and a warrant, under the hands and seals of the 
trustees, was duly issued and dehvered to the collector. A few 
individuals having neglected to pay their proportion of the tax, 
the trustees renewed the warrant as to the delinquents, but did 
not aflfix their seal to the renewal. The warrant was delivered 
to the collector, who levied on the property of the delinquents 
and sold it. The question submitted was, whether the renewal 
of the warrant was valid. 

By A. C. Flagg, June 2, 1830. A warrant was made out 
under seal, and in relation to certain dehnquents was renewed 
by the trustees : The dehnquents contested the validity of the 
renewal, because it was not also under seal. It is conceded that 
the warrant is vahd in all respects; and it would seem that those 
who have been favored with an extension of the time for paying 
their tax beyond the ordinary hfe of the warrant, are the last 
persons who ought to call in question the form in which this in- 
dulgence to them is granted. The original warrant is just as 
good evidence of the indebtedness of the person, and the equity 
of the assessment, after thirty days, as before. The warrant re- 
quires the collector to levy and make return within thirty days, 
and the renewal is, in its operation, merely giving the collector 



64 CASES DECIDED BY THE 

thirty days longer to make his return in respect to certain delin- 
quents, and gives such delinquents thirty days longer to make 
payment. The renewal does not recapitulate any part of the 
warrant, but is made upon the supposition that the warrant is 
perfect. If it is not to be viewed in this light, it would seem 
that the renewal should state the material parts of the warrant, 
as well as to have the seal affixed. The proceeding on district 
warrants is the same as on justices' executions, and in the case 
of executions, 2d R. S. p. 251, sec. 145, it is provided that "if 
any execution be not satisfied, it may from time to time be re- 
newed by the justice issuing the same, by an endorsement there- 
on to that effect, signed by him and dated when the same shall 
have been made." A similar endorsement embracing the names 
of the delinquents, is a valid and sufficient renewal of a warrant 
issued by the trustees of a school district. Trustees cannot issue 
or renew a warrant after their successors are chosen. The new 
trustees, on being satisfied by their predecessors that certain sums 
are due, should sign or renew a warrant in order to give it ef- 
fect, but in doing this they do not incur any individual liability. 

(anonymous.) 

Public money cannot be paid to a district unless a school has been kept therein 
three months by a qualified teacher, and unless all moneys received the pre- 
vious year have been paid to him. 

By A. C. Flagg, July 16, 1830. The commissioners of 
common schools are expressly prohibited from paying the public 
money to any district, unless there is a report showing that the 
district has had a duly quahfied teacher for three months at least, 
and that all moneys received from the commissioners for that 
year have been applied to the payment of the compensation of 
such teacher, sec. 24. 

The leading design of the school^system is to promote the em- 
ployment of qualified teachers. 

The Trustees of school district No. 13 in the town 
of Castile, ex parte. 

A person set off without his consent from a school district, cannot be taxed for 
a school-house, if within four years he has paid a tax for that purpose in the 
district from which he was thus set off. 

If a part of the value of the property of an old district is awarded to a new dis- 
trict on account of a person not liable to be taxed in the latter for a school- 
house, the amount i^ to be allowed to the credit of all the inhabitants. 

This was a case in which a new district was formed, and a 
part of the value of the school-house belonging to the district 
from which it was taken, was apportioned to the former on ac- 



SUPERINTENDENT OP COMMON SCHOOLS. 65 

count of the taxable property of a person who had paid a tax in 
the old district within four years, and who was set off to the new 
district without his consent. The questions submitted were, 
wliether he could be taxed in the new district for a school-house, 
and if not, to whose credit the sum received from the old district 
(Ml account of his taxable pro^Derty, should be applied. 

By A. C. Flagg, July 26, 1830. The 81st section exempts 
"every taxable inhabitant of a district who has been within four 
years set off from any other district," without his consent, if he 
has paid a tax within that time for building a school-house. It 
is not material whether he is set off from an old to a new dis- 
trict, or whether from one old district to another. The person 
to whom you allude, if he has paid a tax within four years for 
building a school-house, and if he did not consent to be set off, 
is entitled to exemption. 

The money which is apportioned on the property of this per- 
son from the old district is to be paid to the trustees of the new 
district, and by them applied towards procuring a school-house 
for their district. This, if it is equal to the new tax, is an ex- 
emption of all those set off, whether they consented or not ; for 
it is to be allowed to the credit of the inhabitants thus set off in 
payment of any tax assessed on them. But an apportionment 
made to one individual is not to be credited to another in ex- 
tinguishment of his tax, but is to be paid towards the erection 
of the new house, as an offset for the exemption which the non- 
consenting individual claims. The fair, equitable import of sec. 
69 is, that the money apportioned to each individual and paid by 
tlie old district, shall be credited to that individual. This is the 
only ''credit" to which he is entitled. My opinion therefore is 
that the individual, on the facts assumed, is exempt, and that 
the money apportioned to him from the old district is to be ap- 
plied for the benefit of the new district, as an offset for such ex- 
em ption. 

The Commissioners of Common Schools of the town 
of Hamilton, ex parte. 

Persons attached to a school district without the consent of the trustees, may 
within three months be set off again without the consent of such trustees. 

This was a case in which the commissioners of common 
schools of the town of Hamilton set off three persons from one 
existing district to another, without the consent of the trustees 
of the district to which they were thus annexed. Before the ex- 
piration of three months, the commissioners formed a new dis- 
trict, and annexed to it the three persons referred to. The ques- 
tion submitted was, whether the consent of the trustees of the 

5 



i56 CASES DECIDED BY THE 

district to which they were first set off was necessary, or whether 
the consent of the trustees of the district from which they were 
originally taken, was sufficient. 

By A. C. Flagg, Aiigust 6, 1830. If persons are attached 
to a district without the consent of the trustees, and the com- 
missioners, before the end of three months, set them to a new 
district, they only want the consent of the trustees of the dis- 
trict to which they originally belonged. The new district has 
710 trustees to consent for it ; and the persons are not yet legally 
incorporated with the district to which they were first transfer- 
red. 

The executors of the estate of Thomas Smith against 
the trustees of school district No. 21 in the town 
of Brookhaven. 

Persons about to remove from a district must be included in a tax-list, if they 
are actually inhabitants of the district when the list is made out. 

No appraisement of a school-house and other property is necessary when persons 
are set off from one existing district to another. 

This was an appeal by the executors of the estate of Thomas 
Smith deceased, late a taxable inhabitant of school district No. 
21 in the town of Brookhaven, from the proceedings of the trus- 
tees of said district, in assessing a tax for building a school- 
house. The circumstances under which the appeal was brought, 
are stated in the decision of the Superintendent. 

By A. C. Flagg, August 9, 1830. In the case of the ap- 
peal of Charlotte S. Smith, executrix, Wm. Woodhull and Wm. 
Beale, executors of the estate of Thomas Smith, deceased, from 
the doings of the trustees of district No. 21 in Brookhaven, it 
appears that Thomas Smith in his life time was transferred 
from district No. 20 to 21, and that at the time of the transfer 
all the trustees of the two districts gave their consent. District 
No. 21 having no school-house, a room was hired for the ac- 
commodation of the district school. In September, 1829, Tho- 
mas Smith, of whom the house was hired, died, and the trus- 
tees had notice that they could not occupy the house after May 
following. Accordingly in February the district voted a tax 
to build a school-house. In pursuance of this vote, a tax-list was 
made out and placed in the hands of the collector, property be- 
longing to the estate of Thomas Smith deceased, was seized 
and advertised by the collector, and two days before the sale no- 
tice of an appeal to the Superintendent was served, and the sale 
has been thus suspended. 



SUPERINTENDENT OF COMMON SCHOOLS. 67 

1. The appellants allege that the family of Thomas Smith, 
deceased, were about removing from the district when the as- 
sessment was made, and complain as a hardship that the estato 
should be required to pay for privileges which none of the family 
can enjoy. 

2. That it was the duty of the trustees to have obtained from 
the commissioners an appraisement of the school-house in No. 
20, and to have deducted the apportionment belonging to the 
Smith estate before the tax list was made out. 

In relation to the first point, it is to be observed that sec. 76, 
says that the trustees shall apportion the tax among all the 
taxable inhabitants of the district " at the time of making out 
the list." If those who are hable to pay taxes on the estate of 
Thomas Smith deceased, were residents of district No. 21 at the 
time of making out the assessment, then it was imperative on the 
trustees to place them upon the list. As to the hardship of pay- 
ing for a school-house from which the family, in consequence of 
their removal, will derive no advantage, it is similar in character 
to the apparent hardship to which all those persons are subjected 
who are assessed to erect school-houses when they have no chil- 
dren to send to school, and consequently receive no direct equi- 
valent for their money. ' The law however for supporting com- 
mon schools is based upon the principle that all property shall 
be assessed for the support of schools, whether the owner has chil- 
dren requiring school accommodations or not. And if the per- 
sons thus situated receive no direct equivalent for their money, 
they are nevertheless interested in and benefitted by every mea- 
sure which tends to ameUorate the condition and enlighten the 
minds of those around them. Property is valueless unless the 
owner is protected in the quiet enjoyment of it, and it is better to 
pay a tax to give instruction to the rising generation, and thus 
train them to usefulness, than to pay a tax to punish them for 
crimes from which an education might have protected them. 
Persons of property have the greatest interest in whatever con- 
cerns the peace and welfare of the community ; and they have 
an interest in supporting the common schools proportioned to 
their property. If the child of their neighbor becomes intelligent 
and grows up a useful citizen, he is a safeguard to them, and 
secures them in the quiet possession of their property. If he 
grows up in ignorance and vice, and becomes a depredator upon 
society, the man of property is exposed in proportion to the ex- 
tent of his possessions, and in addition to this his property is 
taxed for the punishment of the depredator. County and town 
taxes are paid with a less gratifying equivalent than that re- 
ceived for taxes paid for schools. 



68 CASES DECIDED BY THE 

The trustees in this case could not legally exempt the estate 
of Mr. Smith from assessment. 

As to the second point, it is only necessary to say, that as the 
commissioners set the persons in question from one district t© 
another district, no appraisement of the school-house was neces- 
sary. Sec. 67 provides that the school-house of the old district 
shall be estimated " when a new district shall be formed from 
one or more districts possessed of a school-house." In this case 
no new district was formed ; it was only an alteration of the line 
between two old districts.* 

The appeal is dismissed. 

The Trustees of school district No. 4 in the town of 
Mount Morris, against the inhabitants of said dis- 
trict. 

A tax being voted to build a school-house, the tax list made out and a warrant 
issued, the collection of the tax can not be suspended by vote of a district 
meeting. 

The facts of this case are stated in the Superintendent's deci- 
sion. 

By A. C. Flagg, August 12, 1830. In the case of the ap- 
peal of the trustees against the inhabitants of district No. 4 Mount 
Morris, it appears that in the month of March last, the district 
passed a vote to raise 175 dollars to erect a school-house, fixed a 
site, and instructed the trustees to erect the building. Accord- 
ingly a contract was made and the house is now in progress. 
On the 5th of June, at a district meeting, a vote was passed 
suspending the collection of the tax, or a part of it, until after the 
expiration of the term of service of the present trustees. This is 
improper: the trustees have made contracts on the faith of the 
vote to raise a tax. The assessment is made out and the war- 
rant issued. The power given to district meetings, by sec. 61, 
sub. 6, to alter and modify their own proceedings, does not con- 
fer authority to interfere with a warrant which has been issued 
by the trustees. 

It is decided that the proceedings of the meeting of the 5th of 
June, 1830, in district No. 4 Mount Morris, are void. 

* This principle is settled by the decision in the case of the trustees of school 
district No. 17, in the town of Hector, page 35. 



superintendent of common schools. 69 

(anonymous.) 

Vacant unimproved lots are not taxable, if the owner is a non-resident. 
Of a lot of 50 acres, a tenant of ten is regarded as the agent of the non-resident 
owner for the remaining forty. 

By A. C. Flagg, October 11, 1830. Vacant unimproved 
lots, if the owner is a non-resident of the district, are not taxable 
for school purposes. Where a lot of fifty acres, had a tenant on 
ten acres of it, it was decided that the tenant could be assessed 
for ten acres; and that he must be so far regarded as the agent 
for the forty acres, as to make the non-resident owner taxable 
therefor, under sec. 77. 

(anonymous.) 

Purchases subsequent to the organization of a school district are not to affect 
their boundaries. 

By A. C. Flagg, October 18, 1830. Where a person pur- 
chased a lot in an adjoining district along side of his farm, it 
was decided that he was taxable for the lot purchased, in the 
district where it was situated. If his farm had been intersected 
by the district line, when the commissioners formed it, then he 
would have been assessed for his whole farm, in the district 
where his house was situated ; but the lot purchased is a distinct 
lot, and the lines of districts cannot be changed by individual 
purchases. 

The Trustees of school district No. 12 in the town 
of Sardinia, against the Commissioners of Common 
Schools of said town. 

Commissioners of common schools cannot interfere with the organization of a 
school district, while an appeal before the Superintendent, in respect to such 
organization, is pending. 

On the 16th September, 1829, the commissioners of common 
schools of the town of Sardinia, formed school district No. 12 in 
said town, by setting off a part of No. 1. From this proceeding 
an appeal was brought to the Superintendent, who, on the 22d 
May, 1830, annexed to district No. 12 a part of district No. 2, 
and in other respects confirmed the proceedings of the commis- 
sioners. While this appeal was pending, the commissioners 
formed a new district and set off to it the persons previously an- 
nexed to No. 12. From this proceeding another appeal was 
brought by the trustees of No. 12. 

By A. C. Flagg, November 25, 1830. The decision of the 
22d May establishes the boundaries of district No. 12. The com- 
missioners were wrong in interfering with this question during 



70 CASES DECIDED BY THE 

the pendency of the appeal. The whole design of the law which 
authorizes the appeal, was that the authority in relation to the 
points in controversy, should be taken from the commissioners, 
and transferred to the superintendent from the time of making 
the appeal. The appeal would be a mockery, if, in the mean 
time, the commissioners could go on and make anew all the altera- 
tions which were appealed from as a grievance. But if the com- 
missioners had not erred in their interference with a question 
which had been taken from them by an appeal, still the deci- 
sion of the 22d of May settles the boundaries of No. 12, and that 
decision, as to the particular question submitted, is final, and 
the commissioners cannot alter those boundaries at a subsequent 
time, 

[(anonymous.) 

If an annual meeting is held at the time and place appointed at the annual meet- 
ing of the preceding year, it is valid, although the clerk of the district may 
have neglected to give the notice required by law. 

By A. C. Flagg, October 30, 1830. At an annual meeting 
the time and place for the next annual meeting are to be fixed ; 
this is notice to all the district, and if the inhabitants meet ac- 
cording to the adjournment, the meeting is valid, although the 
derk may have neglected to put up the notice required by the 
statute. 

The Trustees of school district No. in the town 

of Lysander, ex parte. 

The public money must be paid to teachers for services rendered between the 
January preceding and the January following the time of receiving it. 

This was an application to the Superintendent for his opinion 
with regard to the right of the trustees of a school district to pay 
the public money received in April to a quahfied teacher for giv- 
ing instruction during the summer of the previous year. 

By A. C. Flagg, November 10, 1830. The school money 
received in April should be paid for the wages of qualified teach- 
ers between the January preceding the time of its receipt, and the 
January following. This enables the trustees to certify in their 
annual report, dated in the following January, that the money 
has been paid to a qualified teacher, " during the year ending at 
the date of such report," as required by the 24th section of the 
school statute. 



SUPERINTENDENT OF COMMON SCHOOLS. 71 

The Trustees of school district No. in the town 

of Stillwater, ex parte. 

A store and lot must be taxed in the district in which they are situated; but 
goods in a store are to be taxed in the district in which the owner resides. 

This was an application for the opinion of the Superintendent 
in a case where the owner of a store was assessed to pay a tax 
<Mi the goods contained in it, in a district adjoining the one in 
which the store was situated, the residence of the owner being 
in said adjoining district. The store and the owner's dwelling 
house were separated by a road, which was the boundary line 
between the two districts. The principle of the Superintendent's 
opinion in the case is, that the store and lot, being real estate, 
were taxable in the district where they were situated, and the 
goods contained in the store, being personal property, were tax- 
able in the district in which the owner resided. 

By A. C. Flagg, November 19, 1830. The owner of the 
store who is a non-resident is liable to be assessed in 5'^our district 
for the building and store lot ; for the goods in the store he is li- 
able to be taxed in the district where he resides, and not else- 
where. 

The Trustees of school district No. 2 in the town of 
North Salem, ex parte. 

A person coming into a school district the day before a district meeting, with 
the bona fide intention of residing there, is a voter. 

This is a case in which the Superintendent's opinion was so- 
licited with respect to the right of a person to vote at a district 
meeting, who had removed into the district with his family and 
taken up his residence in it the day before the meeting was held. 

By A. C. Flagg, November 19, 1830. Persons who have 
recently moved into the district, if they have done it with a bona 
fide intention of taking up their residence therein, and who have 
the other legal qualifications, are entitled to vote at district meet- 
ings. A person who has purchased a farm, or rented a tene- 
ment, and has come into the district to reside the day before 
a district meeting, has the required residence to entitle him to 
vote. 

The Trustees of school district No 7 in the town of 
Salem, ex parte. 

Persons having certain qualifications may vote at district meetings. 

This was an application to the Superintendent, from the trus- 
tees of district No. 7 in the town of Salem, to decide what qua- 



72 CASES DECIDED BY THE 

liflcations were necessary to entitle a person to vote at a district 
meeting, a tax having been laid in the district to build a school- 
house, and a question having arisen as to the right of certain in- 
habitants to give their votes. 

By A. C. Flagg, December 7, 1830. The qualifications for 
voting at district meetings, are : 

1. Having a freehold in the town. 

2. Having been assessed to pay taxes in the town. 

3. Having fifty dollars liable to taxation. Either qualification 
is sufficient without the other. 

The payment of taxes on the highway, qualifies a person to 
vote in a district meeting under section 60. The old constitution, 
section 7, required as one quahfication for voting, that the citizen 
should have "been rated and actually paid taxes to this state;" 
and the 10th section of the election law, 2 R. L. of 1813, p. 253, 
declared that payment of taxes on the highways should be con- 
sidered as a " payment of taxes to the state," for the purpose 
contemplated in the constitution. By section 60 of the school 
statute, the person entitled to vote is only required to have paid 
taxes, or to have been assessed, in the town where he resides, to 
entitle him to vote in the district. 

Personal property to the amount of fifty dollars over and above 
the exemptions on execution, if the fifty dollars is liable to tax- 
ation in the district, makes the owner, if he is a resident of the 
district, a voter therein. 

The Trustees of school district No. 3 in the town of 
Eaton, ex parte. 

In employing teachers trustees should so far consult the feelings and wishes of th« 
inhabitants as not to give offence to a large portion of them. 

This was a case in which the inhabitants of school district 
No. 3 in the town of Eaton, had, at a district meeting, voted 
that a certain person should be employed as a teacher by the 
trustees. The trustees, in opposition to the direction contained 
in the vote referred to, employed another individual. In con- 
sequence of thus violating the wishes of the inhabitants great ex- 
citement was produced in the district, and the opinion of the Su- 
perintendent wEis solicited with regard to the legality of the pro- 
ceedings of the trustees. 

By A. C. Flagg, December 16, 1830. I have received the 
application of twenty-five of the inhabitants of district No. 3 
in the town of Eaton, in regard to the employment of a teacher 
by two of the trustees, contrary to a vote of said district for ano- 
ther person. 

Two of the trustees have a legal right to employ a teacher ; 



SUPERINTENDENT OF COMMON SCHOOLS. 73 

they ought, however, so far to consult the wishes and feelings 
of the district, as not to employ a person who is offensive to a 
large portion of the inhabitants. In this case the trustees appear 
to have a majority of the district with them ; they also have the 
law on their side. With all this, however, I would urge upon 
them the importance of conciliation and of preserving harmony 
in the district. 

If the opposing party have valid objections to the teacher em- 
ployed, that would be another matter, and they could urge those 
objections on an appeal to the Superintendent. 

The Trustees of school district No. 2 in the town of 
Depau, ex parte. 

A minister of the gospel is exempt from taxation for common school puriwses in 
the same manner as for other taxes. 

This was an application to the Superintendent for his opinion 
with regard to the right of the trustees of school district No. 2 in 
the town of Depau, to include in the assessment of a tax voted 
to build a school-house, a minister of the gospel residing in the 
district. 

By A. C. Flagg, December 30, 1830. A minister of tlie 
gospel is exempt from a tax for school-houses in the same man- 
ner as for other taxes, by the 4th section of the general tax law: 
If the minister is to be included in the district assessment roll, 
then by the same rule all the property exempted in said 4th sec- 
tion should also be embraced ; for there is no special exemption 
in the school statute, of colleges, poor-houses, churches, and 
United States and state lands : And if full effect were not given 
to the exemptions in the general law, the school-house would 
also be embraced in the tax-list of the district. 

The inhabitants of school district No. 13 in the town 
of Knox, against the Trustees of said district. 

No real estate except such as lies in a school district can be taxed in it for com- 
mon school purposes. 

Non-resident tenants cannot be taxed under section 78 of the title relating to 
common schools. (But see note.) 

This was an appeal by certain inhabitants of school district 
No. 13 in the town of Knox, from the proceedings of the trus- 
tees of said district in assessing a tax. The grounds of objec- 
tion are set forth in the Superintendent's opinion. 

By A. C. Flagg, February 25, 1831. In district No. 13 
in Knox, it is represented that the trustees omitted to include 
in the assessment one separate lot which is not within the dis- 
trict, on the ground that said lot was included in the same 



74 CASES DECIDED BY THE 

deed with the one on which the owner resides. By the same 
rule, if a man inherited by will one lot in Cayuga county and 
another in Columbia, he must be taxed for them both in the 
county where he resided, because he derived title to both of 
them in the same will. The lots referred to in the case in dis- 
trict 13, will be taxed in the same manner as if the title to them 
had been contained in separate deeds. 

Another lot was embraced in the same assessment, which was 
in the occupancy of a tenant who was a non-resident of the dis- 
trict, except the house and garden, which had been sub- rented 
to a person residing in the district. The 7Sth section, making 
non-resident owners liable for taxes, does not extend to non- 
resident tenants. In this case the tenant of the house who re- 
sides in the district can be assessed for the value of the part oc- 
cupied by him; but that part cleared and cultivated by the origi- 
nal and non-resident tenant is not liable to be assessed to the 
latter.* 

The trustees must correct the assessment accordingly. 

The Trustees of school district No. 1 in the town of 
Oswego, ex parte. 

Bridge companies are taxable in the school districts where the tolls are col- 
lected. 

This was an application for the opinion of the Superintendent 
with regard to the liability of the Oswego Bridge Company to be 
taxed for common school purposes. 

By A. C. Flagg, March 12, 1831. The question is sub- 
mitted whether the Oswego Bridge Company (a corporation with 
the usual powers) is liable to be assessed for school taxes. It is 
provided by title 4, chap. 13, that "all moneyed or stock cor- 
porations shall be liable to taxation on their capital ;" and sec. 
79, of the statute relating to school assessments, says, '-the valua- 
tion of taxable property shall be ascertained as far as possible 

* In the case of Dubois vs. Thome and others, 8 Wendell, 518, it would 
seem that a non-resident tenant was considered liable for a tax, the owner of 
the land being also a non-resident. The decision of the court was made under 
the school act of 1819, the Revised Statutes not being in force when the tax was 
laid. The 7Sth section of the statute relating to common schools, under which 
the Superintendent's decision above reported was pronounced, was new, and, 
as the revisers state in their notes, was taken substantially from a bill reported 
to the assembly in the year 1826. Although the provisions of law, according to 
which these two cases were determined, were essentially different, the supreme 
court having, though incidentally, given the opinion that the tenant, who was 
a non-resident, was liable for the tex on so much of the land as he occupied, 
and that he, " for the time being, was owner," it would seem that a non-resi- 
dent tenant might, under section 78, be taxed as owner, for the time, for clear- 
ed and cultivated land in the same naanner as if the fee were in him. 



SUPERINTENDENT OF COMMON SCHOOLS. 75 

from the last assessment roll of the town." If the Bridge Com- 
pany is on the assessment roll of the town, and the tolls are col- 
lected in your district, then the company is liable to be taxed in 
the district in the same manner as in the town. Under the for- 
mer laws, and when the amount assessed upon corporations was 
distributed to the several towns where the stockholders resided, 
it was decided that the school tax must be assessed upon the in- 
dividual stockholders according to their interest, and not upon 
the corporation. The laws for assessments upon corporations 
have been essentially varied, and as they now stand, all Banks 
and other moneyed or stock corporations, deriving an income or 
profit from their capital or otherwse, are liable to taxation on 
their capital, in all assessments for school district purposes. 

The Commissioners of Common Schools of the town 
of Olive, ex parte. 

Alterations ought not to be made in school districts when the effect is to give 
particular individuals unjust advantages in respect to otl-.ers. 

This was an application to the Superintendent for his opinion 
on the following statement of facts : A. B. and C. were an- 
nexed to school district No. 8 in the town of Olive, after a school- 
house had been built and paid for in that district. Sometime 
afterwards the commissioners of common schools formed a new 
district, and annexed to it A. B. and C. by setting them off 
from No. 8. The individuals thus set off, claimed that they 
were entitled to a portion of the value of the school-house of No. 
8, although they had contributed nothing towards its construc- 
tion. 

By A. C. Flagg, March 14, 1831. The case stated in 
your letter, where certain persons were annexed to a district 
which had a school-house previously constructed and who being 
detached again, claim to receive a portion of the value of a house 
which they did not help to build, is one in which a strict com- 
pliance with sees. 67 and 68 would operate inequitably upon 
those who only retain the house which they themselves built. — 
In such a case, those who are set off ought not to ask remunera- 
tion; and if this is not satisfactory, it would be less unjust to 
them to be set back to No. 8, than it would be to the inhabitants 
of the latter to be taxed to pay to those who had contributed 
nothing to the erection of the house, a portion of its value. 

This is a case in which the commissioners should have de- 
dined setting the persons off if they required the appraisement 
of the school-house. 



76 cases decided by the 

(anonymous.) 

Aliens may vote at district meetings. 

By A. C. Flagg, March 15, 1831 . Aliens may vote at dis- 
trict meetings. The general law for regulating elections, pro- 
vides that, " every male citizen" having a certain residence, may 
vote. The statute relating to schools, says, " No person" shall 
vote at district meetings unless he has certain qualifications. 
Subdivision 2, of sec. 74, requires the district clerk in calling a 
special meeting, to notify " each inhabitant of such district, liable 
to pay taxes." All persons or inhabitants, who pay taxes, are 
tlierefore entitled to vote. The school statute does not require citi- 
zenship as a qualification for voting; and an alien, who is a resi- 
dent of the district, and has the other qualifications, is entitled to 
vote. 

The Trustees of school district No. 4 in the town of 
Lenox, ex parte. 

Trustees shonld see, when they employ a teacher, that he has a certificate of 
qualification. 

If a teacher does not pass an examination before the inspectors, his wages must 
be collected by a warrant against those who have sent their children to 
school. 

Certificates of qualification are good for a year, even though given by the inspec- 
tors for a shorter period. 

This was an application to the Superintendent by the trustees 
of school district No. 4 in the town of Lenox, for the purpose of 
being advised as to the proper course to be pursued to pay the 
wages of a teacher who had been engaged in teaching three 
months, and on application to the inspectors, and after an exami- 
nation by them, had been refused a certificate of qualification for 
a year; but received one fi"om the inspectors limited in duration, 
by its terms, to one month. The principal question submitted 
was whether, on the certificate received by the teacher, the pub- 
lic money might be paid to him for the three months preceding 
the time when it was given. 

By A. C. Flagg, April 16, 1831. The trustees of a district 
can issue a warrant for the school bills of a teacher who has no 
certificate as well as for one who has. In applying the public 
money however, they can only pay it to those who are duly 
quahfied. (See sec. 24.) 

When the trustees employ a teacher to whom they intend to 
pay the public money, they ought to know that he has a certifi- 
cate dated within one year of the time of his employment. The 
certificate of the inspectors, if it is good for a month is good for a 
year. There can be no half way certificates ; it is either good or 



SUPERINTENDENT OP COMMON SCHOOLS. 77 

bad for the whole time. 1 have always decided in cases where 
a conditional certificate was given, that so far as the trustees and 
the district were concerned the certificate must be considered 
good. But in your case the teacher did not apply for a certifi- 
cate until the end of three months, and then faiHng to pass a 
aatifactory examination, he could not be considered a qualified 
teacher for the preceding three months. 

You can collect, by warrant, the whole amount of this teacher's 
wages from those who sent to school, but no part of the public 
money can be paid to him. 

(anonymous.) 

Unless fuel is provided by tax it must be furnished by those who send children 
to school. 

If any person neglects to furnish his proportion of fuel, the amount may be in- 
cluded in the rate bill or sued for. 

By A. C. Flagg, April 22, 1831. Where a district meet- 
ing votes to provide fuel by a tax, according to sec. 61, sub. 5, 
the tax must be assessed upon all the inhabitants of the district 
according to the property owned and possessed by them respec- 
tively, whether they send to school or not. Where a district 
does not vote to provide fuel by a tax, each person sending to 
school can be required b}^ the trustees, to furnish fuel in propor- 
tion to the number of children sent. If any person neglects to 
furnish his proportion of fuel, the trustees may furnish it, and an- 
nex the amount paid for it to the school bill of the delinquent at 
the close of tiie school term, or they may prosecute him for it in their 
name of office. To enable the trustees to make an apportionment 
of fuel at the commencement of the school, they can ascertain how 
many scholars each inhabitant proposes to send, and graduate 
the fuel accordingly. If, in the progress of the school, the num- 
ber is varied, the apportionment can be altered so as to do jus- 
tice to the parties concerned. 

(anonymous.) 

A tax can not be laid on the property of a district to pay school bills. 

By A. C Flagg, Mai/ 7, 1831. The district has no power 
to vote a tax to pay a school bill. The school bill must be paid 
by those who send to school. If they are in the district the bill 
can be collected by warrant: if they live out of the district, by 
sec. 89, the trustees can prosecute them, in their name of office. 

If the warrant to collect a bill has run out, and new trustees 
are chosen, the new trustees must sign the renewal. 



iO CASES DECIDED BY THE 

The Commissioners of Common Schools of the town 
of Nunda, ex parte. 

In apportioning the value of a school-house belonging to a district lying partly io 
two towns, the commissioners should follow the assessment rolls of the towns. 

This was an application for the direction of the Superinten- 
dent in a case where a school district had been formed by setting 
off from a district lying partly in two towns a portion of its terri- 
tory and inhabitants. On examining the assessment rolls of the 
two towns for the purpose of apportioning the value of the school- 
house belonging to the old district among the persons set off to 
the new one, the commissioners found the standard of valuation 
in one town much higher than in the other, and the ques- 
tion submitted was, whether they had a right to equalize the 
apportionment by disregarding the assessment rolls of the two 
towns, and adopting a standard of valuation which should be 
uniform as to both. 

By A. C. Flagg, June 4, 1831. If a new district was form- 
ed from Nunda and an adjoining town, it was proper to appraise 
the school-house retained by the old district. 

In apportioning the value of the school-house, it is to be, by 
sec. 68, " according to the taxable property," to be ascertained 
from "the best evidence in the power of the commissioners." 
The assessment roll is ordinarily the best evidence which the 
commissioners can have. I think that the commissioners should 
follow the assessment rolls of the towns ; and if any persons 
are aggrieved, they can appeal to the Superintendent for an equa- 
lization of the apportionment. 

The Trustees of school district No. 1 in the town of 
Conewango, ex parte. 

The jurisdiction of the trustees and collector of a school district, in collecting 

rate bills by warrant, is limited to the district. 
Rate-bills must be collected of residents by warrant, and of non-residents by 

prosecution. 

This was a case in which two non-residents had sent children 
into school district No. 1 in the town of Conewango to attend 
school, and who, in consequence of a difficulty in respect to the 
application of the pubhc money, had refused to pay their school 
bills. The question presented to the Superintendent was whe- 
ther a warrant could be issued to the collector by the trustees for 
the collection of the amount due from the non-residents referred 
to, on account of their portion of the teacher's wages. 

By A. C. Flagg, June 21, 1831. I am inclined to the opi- 
nion that the remedy given in the 89th sec. intended to limit the 



SUPERINTENDENT OF COMMON SCHOOLS. 79 

jurisdiction of the trustees and collector, in collecting a rate-bill, 
to the boundaries of the district. 

Non-residents of the district who have lands therein, may be 
subject to the operation of the warrant of the trustees, where 
they come under the 77th or 78th sec., being specially made 
taxable inhabitants by those sections. 

The provisions in subdivision 13 of sec. 75 authorizes the 
trustees to make a rate-bill against every person who is liable for 
teachers' wages. This would seem to give color of jurisdiction; 
but yet I am inclined to believe that it is restricted by section 89. 
The provision in section 88 authorizing the collector to proceed 
as on executions issued by a justice of the peace, applies only to 
the manner of executing the process, but does not extend its ju- 
risdiction. 

A rate-bill against residents of the district must be collected by 
warrant issued by the trustees, and against non-residents of the 
district by a prosecution on the part of the trustees, in their 
name of office, and not otherwise in either case."* 

The Trustees of school district No. 13 in the town 
of Edmeston, agamst the Commissioners of Com- 
mon Schools of said town. 

If the record of an alteration in a school district does not show that the consent of 
the trustees was obtained, the fact may be proved by other testimony, and the 
omission does not invahdate the proceedings. 

Where the proper records have not been made, the legal existence of school dis- 
tricts will be presumed, if they have been organized for a length of time. 

This was a case in which the commissioners of common 
schools of the town of Edmeston in the year 1830 set off from 
school district No. 9 to No. 13 several inhabitants, but neglect- 
ed to set forth in the record, agreeably to the form prescribed by 
the Superintendent of Common Schools, that the consent of the 
trustees of No. 9 had been obtained. In the year 1831, the suc- 
cessors of the commissioners who made the alteration, refused to 
apportion to district No. 13 any part of the public money on ac- 
count of the children of the persons set off to it from No. 9, up- 
on the ground that the proceeding was void, as the record did 

* By various enactments, warrants for the collection of all taxes for school dis- 
trict purposes, as well as rate bills for teachers' wages, must direct the collector 
to proceed in the same manner as on warrants issued by boards of supervisors to 
the collectors of towns. The principle of this decision is, therefore, essentially 
varied, excepting in a few cases. The decision by John A. Dix, bearing date 
the 6th March, 1837, in a case presented from the town of Willsborough, con- 
tains atiiU examination of the law applicable to cases of this description, and in 
relation to the limits within which school district officers charged with the col- 
lection of taxes, may exercise jurisdiction. 



80 CASES DECIDED BY THE 

not show the consent of the trustees of the latter district to the 
alteration. From this decision of the commissioners the trustees 
of No. 13 appealed. 

By A. C. Flagg, June 25, 1831. On the appeal of Samp- 
son Chase and David Nichols, jun., trustees of district No. 13, 
Edmeston, from the decision of the commissioners of said town, 
in not apportioning to said district the public money for that 
portion of the annual report which embraced the children set 
from No. 9 in 1830, it appears by a statement received from 
the commissioners that they did not consider the proceedings 
of their predecessors legal in breaking up district No. 9 in 1830, 
and setting the inhabitants to No. 3 and 13, for the reason that 
the trustees of the latter districts, as appears from the record, 
had no notice of such alteration, and of the additions made to 
their respective districts. The notice they admit was duly served 
on the trustees of the district which was broken up. 

The commissioners who were in office in the year 1830, have 
testified that when they made the alteration, notice was duly 
served on the trustees of No. 9, and that no other notice was 
given to the trustees of No. 13 than to read over the proceedings 
in regard to the alteration in the hearing of the said trustees of 
No. 13, who were present when the commissioners dissolved 
No. 9. 

It seems that the trustees of No. 13 were present and consent- 
ed to the alteration of their district, and that due notice was given 
to No. 9, and therefore the alteration, so far as 13 was concern- 
ed, was complete, except that it could not go into effect for three 
months, the consent of the trustees of No. 9 being withheld. 

In the new forms, the consent of the trustees is inserted as a 
part of the record, in order to furnish evidence that it was ob- 
tained. It was put in the form to prevent the very trouble which 
has occurred in this case, of getting affidavits to prove that the 
district was legally formed. But when the evidence which the 
record should contain, is furnished from satisfactory sources, its 
omission in the form of the record, does not invalidate the acts 
of the commissioners. The district was duly altered, as the tes- 
timony now produced shows, but the commissioners neglected to 
state the fact according to the form. 

In some instances districts which have been in existence for tea 
years have been found to be without any record whatever; but 
the legality of their existence has been considered established by 
the concurring testimony of the commissioners, and the fact that 
the district had been organized and in regular operation for so long 
a time. In such cases it has been decided that the boundaries 
should be defined, as the district had been understood to be ; and 
that the district should not be destroyed by any neglect of the 



SUPERINTENDENT OF COMMON SCHOOLS. 81 

commissioners or clerk in making out the record in the manner 
required. In all cases where it can be avoided, the inhabitants 
of a district should not be made to suffer, for the neglect, in 
mere matters of form, of any of the officers of common schools. 
A less liberal course would often visit injustice as well upon dis- 
tricts as upon individuals. Under the old law, and by a former 
Superintendent,* it was decided that for errors of form a district 
should not be deprived of its money, but that the commissioners 
might allow the trustees in such cases to correct their reports. 

Where a person who has paid a tax for a school-house is set 
from one district to another, without his consent, he is exempt by 
sec. 81 from taxation for a similar purpose for 4 years ; and in 
order that there may be evidence at hand to prove that he was 
transferred without his consent, the form requires that the fact 
should be stated in the record. But if this is neglected by the 
commissioners the neglect on their part does not deprive the indi- 
vidual of his rights; it only subjects him to the inconvenience of 
proving the fact in some other way. And when this is done, the 
trustees would be bound to exempt him as much as if the com- 
missioners had stated the fact in the record. 

It is therefore decided in this case that district No. 13 was du- 
ly formed by the commissioners in 1830, and that the trustees 
thereof were authorized to return the children set to their district 
from No, 9, and to draw the pubUc money accordingly. 

(anonymous) 
A. B. having two farms separated by a district line is taxable in each district. 

By A. C. Flagg, July 5, 1831. If A. B. owns two farms, 
and the district line separates them, he is liable to be taxed for 
each farm in the district where it lies. 

The Trustees of school district No. 13 in the town 
of Avon, against the Trustees of district No. 9 in 
said town. 

Aa appraisement of a school-house, postponed for good cause, will be confirm- 
ed when made subsequently to the formation of the new district. 

The facts of this case are fully disclosed in tl^ Superinten- 
dent's decision. 

By A. C. Flagg, July 18, 1831. In the case of the ap- 
peal of the trustees of district No. 13 of the town of Avon, 
representing themselves aggrieved by the refusal of the trustees 
of No. 9 of said town to collect and pay to them a certain sum, 

* Mr. Yates. 

6 



82 CASES DECIDED BY THE 

according to the appraisement of the commissioners, it appears 
that in December, 1830, the commissioners of said town formed 
a new district (13) and attached to it certain persons from No. 9, 
which latter district was possessed of a school-house; this was 
not appraised at the time of the division, under an expectation, 
as is stated by the commissioners, that a compromise would take 
place between those who were set off and those who remained 
in No. 9, so that the trustees of the latter district would give 
their consent to the formation of the new district. This expec- 
tation, however, was not realized, and on the 21st of March, 
1831, the commissioners met and appraised the school-house in 
No. 9, and apportioned fifty-seven dollars and seventy-seven 
cents to be paid by the trustees of district No. 9 to the trustees 
of district No. 13, as the proportion to which those set to the 
new district were entitled. The trustees of No. 9 have ne- 
glected to execute the order of the commissioners ; alleging 
that the appraisement should have been made at the time of 
tlie division. And the trustees of No. 13 have appealed to 
the Superintendent, representing themselves and those for whom 
they act as aggrieved by the refusal of the trustees of No. 9 
to execute the order of the commissioners, and pay over to them 
$57.77. The trustees of No. 9, by direction of the Superin- 
tendent, have been served with copies of the appeal and have 
had an opportunity of showing wherein their rights have been 
prejudiced by the omission of the commissioners to make the 
appraisement at the time of the division ; but have not shewn 
that the postponement of the valuation had any influence upon 
the division or the formation of the new district. It is therefore 
decided that it is the duty of the trustees of district No. 9, in 
Avon, to collect the said sum of fifty-seven dollars and seventy- 
seven cents from the taxable inhabitants of said district, and to 
pay the same to the trustees of No. 13, in the manner and for 
the purpose contemplated by sec. 69 of the statute relating to 
common schools. 

(anonymous.) 

A saw-mill having an agent or servant in charge of it is taxable to the non-resi- 
dent owner. 

By A. C, Flagg, August 30, 1831. The lot in your dis- 
trict which has a saw-mill and dwelling-house on it, is taxable 
to the non-resident owner, as you say he improves and occupies 
the same by his agent or servant during the time for running 
the mill, ^nd whenever there is water for the purpose. 



superintendent of common schools. 83 

(anonymous.) 

Children of the overseers of poor-houses are to be enumerated by trustees of 
school districts. 

This was an application for the opinion of the Superintendent 
in a case in which the overseer of a county poor-house resided 
in it with his wife and a number of children between the ages of 
5 and 16 years. 

By A. C. Flagg, October 15, 1831. The children of the 
overseer of the poor-house, between 5 and 16 years of age, must 
be enumerated and returned in the annual reports of the school 
districts. The intention of the act of April 25, 1831, is to ex- 
clude only such children as are supported at the county poor- 
houses as paupers. 

The Trustees of school district No. in the town 

of Milan, ex parte. 

If a person agrees to pay for a cerlain number of scholars he is to have the be- 
nefit of the public money in reduction of their school bills. 

This was a case in which certain persons agreed to pay the 
tuition of a given number of scholars, whether they were sent to 
school or not, with a view to encourage the trustees of the district 
in procuring a good teacher. In providing funds to pay the 
teacher's wages, it was contended by some of the inhabitants of 
the district that the public money should be applied exclusively 
to the benefit of the children actually sent to school, and that the 
persons liable by a special agreement to pay for more scholars than 
they had sent could not be benefitted by ari application of the 
public money to the reduction of their school bills. 

By A. C. Flagg, November 5, 1831. You ask, if an inha- 
bitant of the district promises, in a written article, to pay $5 a 
scholar for the instruction of 5 scholars and does not send any to 
the school, whether he can have any of the public money? 1 an- 
swer; he is to be treated as if he sent 5 scholars to the school 
all the time. The effect of his agreement is that he will be obli- 
gated to pay, whether he sends or not : that is, he is willing to 
be considered as sending all the time and pay accordingly. The 
trustees, by the same agreement which holds the subscriber to 
pay for five children all the time, are bound to grant the same 
person all the advantages which can arise from sending all the 
time. If he sends 3 out of the 5, he is to be charged in his bills 
as if he sent 5, because he has made a special agreement to he, 
so charged, whether he sends or not: and if his absent children 
are considered present for the purpose of charging, shall they 
not be considered present for the purpose of crediting the parenf, 



84 CASES DECIDED BY THE 

or enabling him to share the public money in reducing his tui- 
tion bill? I think they should. The persons who have made 
this agreement are to have their bills made out as if they had 
sent the number of scholars subscribed for all the time. 

The Trustees of school district No. in the town 

Sangerfield, ex parte. 

The vendor of a farm, remaining in possession, is liable for taxes assessed on it. 

The facts of this case are stated in the opinion of the Super- 
intendent. 

By A. C. Plagg, November 7, 1831. You state that in 
June, 1830, a resident and trustee of your district sold a farm to 
a resident of Rensselaer county, whicli farm was to be delivered 
to the purchaser in April, 1831, " free from all incumbrances, 
taxes being particularly specified." In November, between the 
time of purchasing and giving possession, a tax was voted for the 
school-house, and the seller, as one of the trustees, made out the 
tax against the purchaser, who was not yet a resident of the dis- 
trict. 

The 76th section declares that " in making out a tax list, the 
trustees shall apportion the tax on all the taxable inhabitants 
within the district, according to the valuation of the taxable pro- 
perty which shall be owned or possessed by them, at the time of 
making out the list within the district." Under this section the 
trustee in possession of the farm might have been legally assess- 
ed therefor. If in equity or by contract he ought not to pay the 
tax, he had his remedy under the 83d section of the school statute, 
and if the charge bad been made against the purchaser under 
that section it would have afforded him an opportunity to show 
that the seller had agreed to pay all taxes. 

J. W. Brewer and others, against the inhabitants of 
school disti-ict No. 17 in the town of Hartwick. 

If a legal vote, which if given might have affected the result, is rejected,, pro- 
ceedings will be set aside on appeal. 

The facts of this case are stated in the Superintendent's deci- 
sion. 

By A. C. Flagg, November 1.5, 1831. In the case of the ap- 
peal of Jonathan W. Brewer and other taxable inhabitants of dis- 
trict No. 17 in the town of Hartwick, it appears by the affidavit of 
Cornelius Woodcock that his vote was rejected by the moderator, 
although he has resided in the district for the last year, and rented 
a tenement of $125 in value, in said district, the present year end- 
ing the 1 st of April, and has paid road taxes this season ; and that 



SUPERINTENPENT OF COMMON SCHOOLS. 85 

his vote would have prevented the election of the present trustees. 
it is also proved that one person voted for the trustees who was 
not at the time a resident of the district. A satisfactory reason 
has been given for not presenting the appeal within 30 days, 
and notice of the appeal has beea served on the clerk. 

It is clearly shown that Mr. Woodcock was a legal voter, and 
ihat the rejection of his vote may have changed the result of the 
election. It is therefore decided that the election of district offi- 
cers, in school district No. 17, Hartwick, on the 4th day of Octo- 
!)er, 1831, be, and it is hereby set aside, and the several district 
offices are hereby declared to be vacated: and the clerk of the 
preceding year, or if he is unable to attend to it, any taxable in- 
habitant of the district is authorized to call a special meeting, by 
exhibiting this order, for the purpose of choosing district officers, 
to hold until the annual meeting, on the 4th of October next, or 
until others are chosen. 

The Trustees of school district No. in the town 

of Alden, ex parte. 

Clerks or journeymen, of lawful age, are entitled to vote in school districts, if 
they have paid taxes on the highway. 

This was an application for the opinion of the Superintendent 
in a case where several clerks and journeymen of lawful age, who 
had been assessed to work on the highway, but who possessed 
no property, claimed to vote at a meeting which had been called 
to lay a tax for building a school-house. 

By A. C. FlacxG, November 29, 1831. A clerk or journey- 
man of lawful age who is a resident of the district, and has work- 
ed or paid taxes on the highway, is a legal voter at district meet- 
ings. In the case of individuals who have no property and no 
interest in the school, the law may seem to operate unjustly; but 
an exclusion which would reach them would cut off the poor 
man with a large family of children requiring school accommo- 
dations, who has no freehold or property exempt from execution, 
and who is made a voter in the district solely on the ground of 
paying highway or other taxes to the town. If persons who 
have no care for the district should sport with its best interests, 
by means of their votes at district meetings, a remedy is secured 
by an appeal to the Superintendent, under sec. 110 of the s2hool 
statute. 



86 CASES DECIDED BT THE 

Peter Magher, an inhabitant of school district No. 4 
in the town of Cherry- Valley, against the Trustees 
of school district No. 4 in the town of Maryland. 

Real estate is taxable where it lies, and personal property %vhere the owner re- 
sides. 

This was an appeal by Peter Magher. who resided in school 
district No. 4 in Cherry-Yalley, from the proceedings of the trus- 
tees of school district No. 4 in Maryland, in assessing him to pay 
a tax, voted to build a school-house in the latter district, on per- 
sonal property possessed by him in said district. Mr. Magher 
was the owner or lessee of a store in the latter district, which he 
occupied by an agent for the sale of merchandize. The princi- 
pal question involved in the appeal was, whether he was taxable 
for the goods in the district where the store was situated, or in 
the district of which he was a taxable inhabitant. 

By A. C. Flagg. December 3, 1S31. A person can be as- 
sessed for personal property only in the district where he resides; 
the general tax law, section 5 of title 2, provides that every per- 
son shall be assessed in the town or ward where he resides when 
the assessment is made, for all personal estate owned by him. 
Real estate is assessed in the town where it lies although the 
owner lives in another toy."n. The statute relating to common 
schools, authorizes the tax hst to be made out against all the 
taxable inhabitants within the district, and in relation to certain 
real estate, (sections 77 and 7S,) declare-s that the owners who 
are non-residents, for the purposes of taxation, in relation to such 
land, shall be considered taxable inhabitants of the district. 

But there is no such provision in relation to personal property 
of non-residents. Mr. Magher is assessed for his personal pro- 
perty embracing the goods in store in district No. 4 in Cherr}"- 
Talley, and in an assessment in the district where he resides th^ 
valuation would be taken from the town assessment, and he 
would pay taxes on the goods in that district. If Mr. Magher 
rents or owns the store in district No. 4. he can be assessed for 
the real property thus ov/ned or ocx:upied. If I am not mistaken 
as to the facts agreed upon by the trustees of No. 4, Maryland, 
and Peter Magher. the said ^lagher has been wrongfully assessed 
in said district, and the trustees will discharge him from such 
wrongtiil assessment and charge the amount to the taxable in- 
habitants of the district.* 

* The principle of this case is settled by the case of the trustees of school dis 
trict No. in the town of Stillwater, page 71. 



SUPERINTENDENT OF COMMON SCHOOLS. 87 

The President and Directors of the Jefferson County 
Bank, ex parte. 

Banks are taxable for common school purposes. 

This was an application to the Superintendent for the purpose 
of ascertaining upon what grounds the trustees of the school dis- 
trict, in which the Jefferson County Bank was situated, had 
l>een directed to include the property of that institution in the as- 
sessment of a tax voted to build a school-house. 

By A. C. Flagg, December 21, 1831. The general tax 
law provides for taxing banks, and the manner of collecting the 
tax. The school statute refers to the assessments under the ge- 
neral tax law, as the guide for the trustees of districts in levying 
taxes which they are directed to collect. The officers of the 
bank for the purposes of collecting this tax, are made to represent 
the corjX)rate property as much as trustees, guardians, (fcc. are 
the property in their custody by section 10, title 2. of the general 
tax law. I conceive that the general act for the assessment and 
collection of taxes settles the principle as to the equalization of 
all taxes which are to be raised upon property, unless the law 
imposing the tax makes special exemptions. And instead of be- 
ing under the necessity of pointing out a provision in the school 
law declaring that banks shall be taxed in order to sustain my 
opinion, I am inclined to believe that the bank ought to show 
a special provision exempting it from the operation of the school 
statute in relation to taxes, before it can claim an exemption. 

(anonymous.) 

Tax lists must include all taxable inhabitants; but rate-bills include such onlv as 
have sent children to school. 

By A. C. FlagG; December 27, 1831. School bills are made 
out in proportion to the number of scholars sent by each person. 
After exempting the indigent, the trustees are directed in subdi- 
vision 12 of section 75, to ascertain by examination of the school 
lists kept by the teacher the number of days for which each per- 
son not so exempted shall be liable to pay for instruction, and 
the amount payable by each person. The sum is assessed up- 
on the scholar and not upon the property. A tax upon property 
must in all cases embrace every taxable inhabitant of the dis- 
trict. A rate bill for tuition embraces only such as have patro- 
nized the school by sending their children to it. 



qg cases decided by the 

(anonymous.) 
Mode of proceeding in appraising school-houses explained. 

By A. C. Flagg, March 24, 1832. In appraising a school-, 
house the commissioners should give to the trustees of the old 
district the sum total which is to be paid to the new district, and 
also the names of the individuals for whose benefit it is to be 
paid, and the sum to which each person set off is entitled, see 
form page 69. 

The trustees of the old district then take the amount, say four- 
teen dollars, and make out the tax list the same as if it had been 
voted to raise fourteen dollars for repairing the school-house, ad- 
ding thereto five per cent for collector's fees. When collected, 
the money is paid to the trustees of the new district, and they 
credit the same to the persons who were declared by the com- 
missioners to be entitled to it- 
Moses Elkins, a teacher in school district No. 

in the town of Plattsburgh, ex parte. 

Schools should not be kept more than six hours per day. 

This was an application from the teacher of a district school 
for his direction in a case in which the trustees of the district had 
required him to keep his school open eight hours per day. 

By A. C. Flagg, April 5, 1832. The law is not specific as 
to the number of hours which shaH constitute a day in teaching 
school. The custom of the country therefore must determine this 
question. So far as I am informed it is customary to keep six 
hours. It is not in ray judgment desirable to confine children 
more than six hours a day. 

The Trustees of school district No. 13 m the town 
of Canton, ex parte. 

A man of lawful age hired out for a year or six months, and having no family, is 
a resident of the district in which he is hired. 

This was a case in which a young man, after having attain- 
ed the age of 21 years, left his father's house, and hired him- 
self out for six months in another school district. During the 
period for which he was so hired, he returned to his father's 
house on a visit, and claimed to vote at a meeting of the inha- 
bitants of the district in which his father resided. 

By A. C. Flagg, May 8, 1832. When a man arrives at the 
age of 21 years, having no family of his own, and hires out for a 
year or six months, his residence is where he is employed, and 
he cannot come into the district where his father may live, and 
vote at the district meeting. 



SUPERINTENDENT OF COMMON SCHOOLS. 89 

The Trustees of school district No. 6 in the town of 
Pawhngs, against the Commissioners of Common 
Schools of said town. 

Commissioners cannot be compelled to pay interest on moneys withheld from 
school districts in the discharge of their duties. 

This was an appeal to the Superintendent of Common Schools 
under the following circumstances : In the year 1831 it was de- 
cided on an appeal by the trustees of school district No. 6 in the 
town of Pawlings, that the commissioners of common schools of 
that town should pay over to said trustees a certain amount of 
public money which had been withheld by said commissioner!?! 
on account of informalities in the annual reports of that district. 
The specific sum awarded to the district by the Superintendent's 
decision was paid over, and this was an appeal by the trustees 
from the refusal of the commissioners to pay interest on the 
amount for the time during which it was withheld. 

By A. C. Flagg, July 6, 1832. In deciding that the com- 
missioners should pay the school money to district No. 6, it was 
not intended to include any interest. In relation to the public 
money, a specific simi is apportioned to a district, and in conse- 
quence of a supposed informality the commissioners withhold it. 
The case is submitted, and it is decided, that all things consi- 
dered, the commissioners may accept the report, or allow it to be 
amended, and then pay the public money as apportioned. I 
should not think it fair to make them pay interest if I had the 
power to do so. 

E. Savage, a taxable inhabitant of school district No. 
3 in the town of Salem, against the Trustees of 
district No. 9 in said town. 

Rule of taxation applied to a particular case. 

E. Savage was the owner of a farm consisting of several con- 
tiguous lots, all of which were wholly included within the boun- 
daries of school district No. 3, excepting lot No. 227, which was 
included within the boundaries of district No. 9. On lot 227 
there was a tenant who rented a house and a small garden spot, 
but the residue of the lot was worked as a part of E. Savage's 
farm. The question presented was whether the whole of lot 
No. 227 was taxable in district No. 9, or only the house and 
garden spot occupied by his tenant. 

By A. C. Flagg, September 3, 1832. It is submitted whe- 
ther E. Savage is taxable in district No. 9 for lot 227, which lot 
forms a part of his farm, and with the exception of a house and 
garden spot, is now improved as a part of his farm. The 76th 



90 CASES DECIDED BY THR 



c. 



lection of the school act authorizes the trustees to assess taxes 
• on all the taxable inhabitants within the district, according to 
the valuations of the taxable property which shall be owned or 
possessed by them at the time of making out the list within 
the district, or which being intersected by the boundaries of the 
district, shall be so owned or possessed by them partly in such 
district and partly in any adjoining district." If there were 
no tenant on lot 227, it cleariy would be assessed to E. Savage 
in No. 3, although intersected by the district hne and lying in 
No. 9. But as there is a tenant on 227, he is taxable in No. 
9 for the house and garden, or such portion as he rents, and 
E. Savage is taxable for the residue as a part of his farm, in 
No. 3 and not in No. 9. In 4th Wendell, page 429, a case 
somewhat similar is decided, where a farm consisted of 100 
acres in Cambria, and a distinct lot of 50 acres in r^ewiston ; 
the house was on the 100 acres, and the barn on the 50 acres. 
It was in that case decided that the two lots formed one farm, 
and that the owner could not be assessed in the town where the 
50 acres and barn were situated, but was taxable for the whole 
in the town where his house was situated. If Mr. Savage had 
a barn on lot 227, that being a legitimate appendage of a farm, 
it would not render the lot liable to be assessed in No. 9, or any 
part of it. It is my opinion, therefore, that the ti-ustees of No. 
9 cannot assess E. Savage in No. 9 for such part of lot 227 as 
is occupied by him as a part of his farm ; and that the tenant 
on 227 is taxable for the house and garden spot only. The 
trustees will discharge E. Savage from the assessment, and re- 
assess the amount put to him, upon the other taxable inhabi- 
tants of the district. 



The Trustees of school district No. 3 in the town of 
Charlotte, ex parte. 

Land belonging to a minister of the gospel, if leased to a tenant, is taxable. 

This was an application for the opinion of the Superintendent 
in a case, in which a lot of land was owned by a non-resident 
minister of the gospel, and leased to a tenant who resided in the 
district, a tax having been voted to build a school-house, and the 
tenant havmg claimed an exemption under the provision of the 
statute, exempting under certain circumstances, the real estate of 
ministers of the gospel from taxation. 

By A. C. Flagg, September 10, 1832. The land owned by 
a minister of the gospel, if rented, can be taxed to the tenant. 
If the occupant is the agent of the minister, so as to render it 
necessary to make put the assessment against him as owner, 



SUPERINTENDENT OF COMMON SCHOOLS. 91 

then the ministerial exemption may possibly extend to this lot, 
and release it from taxation. The exemption of the real estate 
of ministers of the gospel, by the 4th sec. sub. 8 of the act re- 
lating to the assessment and collection of taxes, provides express- 
ly that real estate to be exempted from taxation, must be occu- 
pied by them.* 

(anonymous.) 

Taxes for fuel or repairs may be voted at annual meetings. 

By A. C. Flagg, November 12, 1832. A tax can be voted 
at the annual meeting for fuel or for repairing the school-house. 

The Trustees of school district No. 3 in the town of 
Massena, ex 'parte. 

School-houses may be used for Sunday schools. 

This was an application for the opinion of the Superintendent 
as to the propriety of allowing the school-house in district No. 3 
in the town of Massena, to be used on the Sabbath for the ac- 
. commodation of Sunday schools. 

By A. C. Flagg, December G, 1832. I think it is proper 
for the trustees to allow the school-house to be used for Sunday 
schools. They are so intimately and so usefully connected with 
the objects and purposes of the common schools, that the school- 
houses should not be shut against them. 

The inhabitants of school district No. 24 in the town 
of Sempronius, against the Trustees of said dis- 
trict. 

Land occupied by an agent or servant of the non-resident owner is taxable to 

the latter. 

This was an apphcation for the decision of the Superintendent 
on a statement of facts agreed on by the parlies. 

By A. C. Flagg, December 29, 1832. In the case of the 
Mircli lot in district No. 24, Sempronius, it appears that the 
owner is a non-resident of the district; that a relative of the 
owner lives on the lot, which has about 15 acres of 150, cleared; 
(hat it is uncertain whether the person hving on the lot pays rent 
or not; but that in the town assessment, the lot is taxed to the 
owner, and not to the person living on the farm. The Birch 
lot is in my opinion taxable in the school district, under the 77th 

* The principle of this case is settled by the decision of the Superintendent, 
page 22. 



92 CASES DECIDED BY THE 

section, to the owner, as being occupied by his agent or servant. 
The 78th section under which the land cleared and cultivated, 
only is to be assessed, relates to such lots as are "not occupied 
by a tenant or agent/' The principle of the law is this, that 
where a family is on the lot requiring and enjoying school ac- 
commodations, the whole farm shall be assessed to build the house. 
Where there is no occupant the non-resident owner shall only 
be assessed, for such parts of the lot as he cultivates, and from 
which he is supposed to derive some benefit. The fact that the 
non-resident owner in this case pays the town tax, proves that 
tliere is no arrangement or expectation between the owner and 
occupant, that the latter is to pay the taxes. The trustees will 
follow the town assessment. 

The Trustees of school district No. 5 in the town 
of Clifton Park, ex parte. 

A teacher, who at the commencement of a term of instruction, holds a cerlifi- 
cate dated within a year, is a qualified teacher to the end of the term. 

This was an application for. the opinion of the Superinten- 
dent in a case where a female teacher held at the time she was 
employed a certificate of qualification, dated within a year, from 
the inspectors of common schools of the town. Before the ex- 
piration of her term the year ended, and her certificate was not 
renewed. The question presented was, whether she could be 
considered a qualified teacher for the whole term or only for so 
much of it as elapsed during the year commencing at the date 
of her certificate. 

By A. C. Flagg, December 30, 1832. In the application 
from district No. 5, Clifton Park, a question is presented, whe- 
ther a teacher having a certificate, dated within one year of the 
time she was employed, but which ran out before the close of the 
term, is a qualified teacher under the law, and entitled to receive 
the public money. In my opinion she is legally a qualified tea- 
cher. Section 93 is complied with if the teacher at the time the 
trustees employ her had a certificate dated within one year of 
that time. The pubhc money rightfully and legally can be 
paid to her. 

Robert T. Law, a taxable inhabitant of school dis- 
trict No. 23 in the town of Salem, against the 
Commissioners of Common Schools of said town. 

No person who is set to a new district can, without his consent, be deprived of 
his right to receive a portion of the value of the school-house of the district, 
from which he is taken. 

This was an appeal from the proceedings of the commission- 



SUPERINTENDENT OF COMMON SCHOOLS. 93 

eis of common schools of the town of Salem, in neglecting to 
appraise the school-house and property of district No. 8 in said 
town, on the occasion of forming anew district. It appeared, on 
the presentation of the appeal, that all the inhabitants of district 
No. 8, who were set off to the new district, with the exception 
of Robert T. Law, relinquished their claim to a portion of the 
value of the school-house belonging to that district. 

By A. C. Flagg, January 12, 1833. Robert T. Law of 
Salem, represents himself aggrieved by being set off from dis- 
trict No 8, Salem, in which district there was a school-house, 
and being annexed to district No. 23, a joint district, without 
appraising the school-house and apportioning to the appellant 
his share of the property of No. 8. It is for redress in this par- 
ticular that the appeal is made. The appellant urges that the 
new district should be annulled, because the school-house was 
not appraised. This is unreasonable and will not be granted. 
The person set to a new district, from an old one possessed of a 
school-house, has a right as an individual to his share of the 
value of the school-house, which he can relinquish or not as he 
pleases. The trustees are, to be sure, made his agents for at- 
tending to and securing his interests in this particular: but the 
69th section declares, that the money received by the trustees of 
the new district from the old trustees, " shall be allowed to the cre- 
dit of the inhabitants who were taken from the former district, in 
reduction of any tax that may be imposed for erecting a school- 
house." If the individual is willing to waive his right in the 
school-house, for the advantages he acquires in the new district, 
and is willing to pay the tax for the new school-house, he may 
do so. It does not appear that Mr. Law was among those who 
relinquished their right in the school-house, and he can properly 
pursue all legal remedies to get his just due. It is therefore order- 
ed thatthe commissioners of common schools of the town of Salem, 
ascertain the proportion of the value of the school-house in No. 8, 
to which Robert T. Law was entitled according to the valuation 
of his property, and that they certify the same to the trustees of 
district No. 8, who are required to collect and pay over to the trus- 
tees of district 23, the sum so certified: and the trustees of dis- 
trict No. 23 will deduct the sum thus ascertained, and collect 
only the residue of the assessed tax from the said Law. 



94 CASES BECIDED BY THE 

The Trustees of school district No. 4 in the town of 
German, ex parte. 

An illegal vote does not necessarily vacate the proceedings of the meeting at 
which it is given; but if the illegal vote might have affected the result, an ap- 
plication may be made to the Superintendent to set aside the proceedings. 

This was an application to the Superintendent for his opinion 
as to the effect of an illegal vote on the proceedings of the meet- 
ing, at which the vote was given. 

By John A. Dix, January 31, 1833. If a person without 
the requisite qualifications votes at a district meeting, his vote 
does not necessarily impair the validity of the proceedings, but 
he may be prosecuted for the offence, and will forfeit the sum of 
ten dollars with the costs of prosecution. If, however, it can be 
made to appear that the result might have been different if the 
illegal vote had not been given, it will be a proper case for an 
application to the Superintendent to set aside the proceedings. 

The Trustees of school district No. in the town 

of Florence, ex parte. 

A person leasing land at halves of a non-resident owner is taxable for it. 

This was a case in which a non-resident owner of land leas- 
ed it to a tenant, who by the conditions of the lease was to pay 
to the lessor one half of the products. The question presented 
was, whether the land should be taxed to the non-resident owner 
or the lessee, who was in possession. 

By John A. Dix, February 5, 1833. If a non-resident 
owner of real property lets it at halves, the tenant in possession 
must be taxed for the whole amount assessed on the property, 
under section 76, 1 R. S. page 482. The apportionment of the 
tax between him and the owner is a question for them to settle 
by agreement or otherwise between themselves, and not for the 
trustees of the district in which the property lies. If the tax be 
assessed for any of the purposes specified in section 83, page 483, 
same vol., the tenant in possession would l^ave a vaUd claim on 
the owner for the whole amount, provided he held upon any of 
the conditions recited in that section, and had made no agree- 
ment with the owner to the contrary, and the tax voted was for 
one of the purposes specified. This is a case of the description 
last referred to. The tax was for building a school-house. The 
tenant in possession must be looked to for the tax ; but unless 
there was an agreement to the contrary, the owner must pay 
over the whole amount to him. If he will not do it voluntarily, 
he may be compelled by a suit at law. But the district must 
collect the tax of the tenant on whom it was assessed. 



SUPERINTENDENT OF COMMON SCHOOLS. 95 

The Trustees of school district No. 10 in the town 
of Smyrna, ex parte. 

Trustees of school districts are not required to take and subscribe the oath pre- 
scribed in the constitution. 
Trustees in assessing taxes may administer an oath when a reduction is claimed. 

This was an application to the Superintendent by the trustees 
of school district No. 10 in the town of Smyrna, for his opinion 
as to the necessity of taking the oath of office when they were 
required to proceed in the same manner as town assessors in as- 
sessing a tax, and as to their right to administer an oath to a 
person claiming a reduction in the amount of the valuation of 
his taxable property. 

By John A. Dix, February 9, 1833. The constitution of this 
state, article 6, provides that "members of the legislature, and 
all officers, executive and judicial, except such inferior officers as 
may by law be exempted," shall take and subscribe the oath 
therein prescribed. 

Whether trustees of school districts are to be regarded as infe- 
rior officers within the meaning of this provision of the constitu- 
tion, may be considered doubtful. But they are charged with 
the exercise of certain powers for the benefit of the inhabitants of 
the districts for which they are appointed ; and as they are en- 
trusted with the expenditure of the income of the school fund, 
their trust must be regarded as partaking of a public character, 
if, as is said, the nature of the duty to be performed, and not the 
extent of the authority, determines the character of the officer. 
In the convention by which the constitution was framed, great 
differences of opinion prevailed with regard to the extent of the 
provision prescribing the oath of office. Some of the members 
were of opinion that it did not embrace town officers, that it was 
applicable only to those officers whose stations required them to 
swear to the constitution of the United States, or such as are enu- 
merated in section 3, article 6, of that instrument. The lan- 
guage of this section is that "all executive and judicial officers, 
both of the United States and of the several states, shall be bound 
by oath or affirmation, to support this constitution," (fcc. The 
section of the constitution of this state, as originally reported, was 
nearly identical in language with this, so that tlie difficulty of 
construction was not relieved by the reference to the constitution 
of the United States. Some of the members were of opinion that 
town officers were embraced by it; and on the final adoption of 
the provision the<.words " except such inferior officers as may by 
law be exempted," were introduced as an amendment and car- 
ried, although at a previous stage of the discussion a similar 



96 CASES DECIDED BY THE 

amendment was opposed as useless and withdrawn by the mo- 
ver. 

If any inference is to be drawn from these discussions it is that 
town officers were within the scope of the provision of the con- 
stitution as adopted ; and it would seem, therefore, that a special 
exemption would have been necessary to release them from the 
obligation of taking the constitutional oath of office, if the law had 
been silent as to other officers. But such is not the case. The 
statute has undertaken to specify by what classes of officers the 
oath shall be taken. The highest judicial and executive offi- 
cers in the state are required by the 1 R. S. sec. 20, page 119. 
to take the oath, although, if the statute had been silent, the 
obligation to take it, by virtue of the constitutional provision, 
would have been equally imperious. The course of legislation on 
this subject is so far important in its bearing upon the question 
that it may tend to throw light upon the intention of the legisla- 
ture, with regard to the exemption of inferior officers from the 
constitutional requirement. If, from the fact that the legislature 
has undertaken to enumerate all the classes of officers who shall 
take the constitutional oath, the inference may be drawn that 
all inferior officers, not embraced in such enumeration, were de- 
signed to be exempted, a construction of the law which shall be 
in accordance with that intention ought to prevail. 

With regard to certain town officers the statute is silent, while 
others are required to take the oath. Of the latter class are the 
supervisor, town clerk and others, pages 345 and 346, 1 R. S. 
while the commissioners and inspectors of common schools, and 
some others, are merely required to file in the town clerk's office 
a notice of the acceptance of their respective offices. The office 
of commissioner of common schools is a much more responsible 
one than that of trustee of a school district, not only as regards 
the more extended sphere of the jurisdiction and the nature of 
the duties to be discharged, but in respect to the pecuniary lia- 
bility incurred, by reason of the sums of money confided to the 
incumbents for distribution. As these officers are merely re- 
quired to file a notice of their acceptance, and as other town offi- 
cers are required by the same title to take the oath, there can be 
no doubt that the intention of the legislature was to exempt the 
former from the constitutional obligation; although the exemp- 
tion is left to be inferred from the silence of the statute with re- 
gard to them, and from its express provisions with respect to 
others of the same grade, 

If this construction of the statute be correct, it would be unrea- 
sonable to suppose that it was the intention of the legislature to 
leave officers of school districts, who are of a grade still inferior, 
to the operation of the provision of the constitution prescribing 



SUPERINTENDENT OP COMMON SCHOOLS. 97 

the oath of office. On the contrary, as the statute has enumc 
rated the classes of officers, by whom the oath shall be taken ; as 
the exemption of the commissioners and inspectors of common 
?jchools is inferred from its silence in relation to them, and as the 
act relating to common schools is silent as to school district offi- 
cers, it may be fairly assumed that the latter were intended to 
be exempted. The question must manifestly be settled by con- 
struction; and as no special exemptions of inferior officers have 
, been made by law, it is not unreasonable to infer a design to 
exempt in one case from circumstances, which in another case 
are deemed conclusive as to the intention of the legislature. 

It is worthy of observation that by the acts of 19th June, 
1812, and loth April, 1814, for the estabhshmcnt of the com- 
mon school system, there was no provision by which trustees of 
school districts were required to take an oath of office, although 
it was provided that the clerk should be " qualified by oath or 
affirmation," as town clerks by law are qualified. By the act 
reorganizing the common school system, passed the 12th April, 
1819, and repeahng the act of 15th April, 1814, (the act of 1812 
had been already repealed,) the provision requiring the clerk of 
the school district to be sworn was not re-enacted: and although 
tlie commissioners of common schools were, by the act of 1812, 
and both the commissioners and inspectors were, by the acts of 
1814 and 1819, required to be qualified by oath or affirmation, 
an act was passed on the 23d March, 1821, by which the pro- 
vision then existing, and prescribing such oath or affirmation, 
was repealed, and a notice of the acceptance of their office was 
substituted for it. To this act the following preamble was an- 
nexed: "Whereas the multiplication of oaths, without absolute 
necessity, has a direct tendency to impair the reverence due to 
them, and to produce consequences unfavorable to the morals 
and good order of society: and whereas certain oaths of office 
required by the laws of this state are either unnecessary in them- 
selves, or rendered useless by the change of those circumstances 
which formerly required them: Therefore; Be it enacted," (fcc. 

The exemption of commissioners and inspectors, by the Re- 
vised Statutes, from the obligation of taking the oath prescribed 
by the constitution, is in accordance with the provisions of this 
act, which certainly adds strength to the inference I have drawn, 
with regard to the intention of the legislature in respect to trus- 
tees of school districts. 

I do, therefore, decide that trustees of school districts need not, 
before they enter on the duties of their office, take and subscribe 
the oath prescribed by the constitution of this state. 

In ascertaining the value of property to be taxed, trustees are 
to be considered as having regularly entered on the discharge of 

7 



98 , CASES DECIDED BY THE 

their duties, and competent to do any act, which the law autho- 
rizes them to perform. The affidavit of a person claiming a re- 
duction in the valuation of his property, may be taken before the 
trustees or one of them. The 80th section of the title and chap- 
ter of the Revised Statutes relating to common schools, requires 
them in certain cases to proceed in the same manner as the 
town assessors are required by law to proceed in the valuation 
of taxable property. The 25th section of title 2, chapter 13, 
Revised Statutes, relating to town assessors, provides that the 
affidavit of a person objecting to an assessment may be made 
before the assessors, or one of them, who are authorized by 
that section to administer oaths for the purpose. The authority 
is given for a specified purpose, and I consider the authority to 
administer oaths, for the same purpose, given to the trustees by 
the section requiring them to proceed in the same manner as 
town assessors. Although it is not expressly given, they would 
not have the power to proceed in the same manner if, by deny- 
ing to them the authority of administering oaths to persons ap- 
pearing before them to dispute the justice of their assessments, 
they should be compelled, in order to give effect to their proceed- 
ings, to call in the aid of individuals authorized to administer 
oaths for other purposes. 



A school must be kept twenty-six days for a month, and seventy-eight days for 

a quarter. 



(anonymous.) 

"■-six days for a moni 
a quarter. 

By John A. Dix, February 11, 1833. Whenever the term 
" month," is used in a contract vinth a teacher, it means a calendar 
month. Twenty-six days, therefore, constitue a school month, 
this being the average number of days after deducting Sundays. 
Ninety-one days are to be considered a quarter of a year.* 
Whenever the term " quarter" is used as the term for which a 
teacher is employed,, seventy-eight days will be the number, 
during which the school is to be kept, deducting such customary 
hoUdays as may occur during the time. 

• See a caae decided by A. C. Flagg, Jan. 20, 1830, page 57. 



SUFERINTENDENT OP COMMON SCHOOLS. 99 

The Trustees of school district No. 4 in the town of 
Scriba, against the Commissioners of Common 
Schools of said town. 

If a school district loses its portion ot the public money in consequence of mis- 
laying its annual report, the loss will, on anplication to the Superintendent, 
be allowed out of the moneys distributed the next year. 

The facts of this case are fully set forth in the decision of the 
Superintendent. 

By John A. Dix, February 18, 1833. Whereas it has been 
made to appear from affidavits of the trustees and others, that 
the annual report of district No. 4 in the town of Scriba, for the 
year 1831, was regularly made and delivered to the town clerk 
of said town, but by mistake was not handed over to the com- 
missioners of common schools, and by reason of this mistake 
said district was deprived by the commissioners of the amount 
of public money to which it was justly entitled for the year 1832; 
and it having been made to appear that said district complied in 
all respects with the requirements of the law: It is ordered that 
the amount to which said district was entitled, be ascertained and 
})aid out of the next moneys which shall come into the hands of 
the commissioners of common schools of said town, and that 
the residue of the public money, after deducting said amount, 
l)e apportioned in the usual manner according to the reports of 
ail the districts, including No. 4. 

The Trustees of school district No. 4 in the town of 
Champion, ex 'parte. 

School-houses cannot be used for any other than common school purposes, ex- 
cepting by genei-al consent. 

A vote of a majority of the inhabitants does not render it proper to use school- 
houses for any other than their legitimate purposes. 

This was an application to the Superintendent for his opinion 
upon tiie following questions : 

1st. Whether the trustees have a riglit to hold the school- 
house of their district open for any religious or temperance meet- 
ings, when not encroaching on school hours. 

2d. Whether a vote of the majority of the taxable inhabitants 
in any district shall decide as to the duty of trustees on the que.s- 
tion above mentioned. 

By John A. Dix, February 19, 1833. 1st. The trustees of 
each school district have the custody and safe keeping of the dis- 
trict school-house. They have the custody of it for the purposes 
specified in the act from which they derive their authority ; and 
they have, therefore, strictly no more right to allow it to be used 
for religious meetings, than the trustees of a religious society 



100 CASES DECIDED BY THE 

would have to allow the church or meeting house to be used 
for keeping a school. There would be no impropriety in allow- 
ing either to be used for one purpose or the other, if no objection 
were raised by the district or the society. But where controver- 
sies grow out of the application of a school-house to purposes not 
contemplated in establishing it, it is the duty of the trustees to 
confine its use strictly to the legitimate objects. 

2d. 1 do not consider the voice of a majority of the inhabi- 
tants of a district as a proper criterion for determining the pro- 
priety of applying a school-house to other uses than those for 
which it was designed. The law has determined this ques- 
tion. It cannot with strict propriety be applied to other than 
common school purposes. It may be otherwise used by the ge- 
neral consent of the parties interested. But if such use were 
likely to distract the district, by breeding dissensions, and a re- 
spectable minority should apply to me for an order to confine 
the school-house to its legitimate purposes, I should not consider 
myself at liberty to deny the apphcation. The trustees there- 
fore should so act as to render any such application to me un 
necessary, 

Harvey W. Babcock and Amos H. Brown, against the 
Trustees of school district No. 4 in the town of 
Milford. 

A factory unoccupied is taxable to the non-resident owner, though a house on 
the same lot is occupied by a tenant. 

This was a case submitted by the parties, on a statement of 
iacts, for the decision of the Superintendent. 

By John A, Drx, February 19, 1833. The facts submitted 
in this case are briefly these: There is a lot of 97 rods of land^ 
on which are a factory and a house, the owners being non-resi- 
dents. The factory and house have been leased separately, and 
the valuations on the last assessment roll of the town are sepa- 
rate. A tax is levied to build a school-house, but at the time 
the tax is assessed, the factory is unoccupied, the tenant having 
left it. The question submitted is, whether the owners of the 
factory are liable for the tax assessed on it. 

The general rule in relation to improved property of non-resi- 
dent owners which is unoccupied, is that the non-resident own- 
ers are taxable therefor in the same manner as if they were in- 
habitants of the district. The house is in the occupation of a 
tenant, and he must be looked to for the tax upon it, which, 
however, he may charge upon the owners under section 83, 
1 R, S. page 483, unless there is an agreement to the contrary. 
The tenant is not responsible for the tax assessed on the factory. 



SUPERINTENDENT OF COMMON SCHOOLS. 101 

as the tenancy is altogether separate from and unconnected with 
it. Decision No. 25 of the Superintendent, heretofore published 
with the school laws, relates merely to vacant unimproved lots, 
and not to improved property.* In the case referred to in that 
decision, the tenant who occupied ten acres of improved land, on 
a lot of which the residue was unimproved, was considered as 
tlie agent of the owner for the unimproved part. The case now 
submitted is entirely different. The whole property is improved, 
and it would be taxable upon the non-resident owners as a 
whole, but for a separate lease of a portion of it. The tenant 
who is in possession becomes liable in the first instance, under the 
provisions of sec. 76, page 482, 1 R. S. for the portion which he 
occupies, but he is not liable for the residue. Indeed, if he were 
to be considered as the agent of the owners for the factory, un- 
der the decision above referred to, the effect would be only to 
make the non-resident owners taxable for it as if they were in- 
habitants. Under whatever view the question is considered, it 
seems to me that the non-resident owners are taxable for the 
factory in the same manner as if they were inhabitants of the 
district. 

The Trustees of school district No. 10 in the town 
of Shawangunk, ex parte. 

If a teacher inflicts unnecessarily severe punishment on a pupil he is answerable 
in damages. His government should be mild and parental; but he is respon- 
sible for the maintenance of discipline in his school. 

Quere. — Whether inspectors can annul a certificate except on the grounds on 
which their authority to examine teachers is given ? 

Corporal punishment has no sanction but usage. 

Teachers cannot demand payment of their wages until the collector haa had 30 
days to collect them. 

This was an application for the opinion of the Superinten- 
dent on several questions submitted to him, the nature of which 
is explained by his answer. 

By John A. Dix, March 1, 1833. Teachers are respon- 
aible to their employers for any abuse of their authority over the 
children committed to their charge. Their government should 
be mild and parental, but at the same time, steady and firm. 
If a teacher inflicts unnecessarily severe punishment upon a 
scholar, he is answerable in damages to the party injured. It 
has been doubted by some whether the inspectors have a right 
to annul a certificate, except upon the ground on which their 
authority to examine is given to them, viz.. to ascertain the quali- 
fications of teachers in respect to moral character, learning and 
ability. The section of the law which gives them authority to 

• See case decided by A. C. Flagg, October 11, 1830, page 69. 



102 



CASES DECIDED BY THE 



annul a certificate, is general in its terras, but the question has 
been raised, whether that power is not to be construed as limited 
by the provisions of the other sections defining their powers. — 
Whether inspectors may annul a certificate because a teacher has 
punished a scholar with too much severity, depends on the man- 
ner in which this question is settled. The question has never 
been presented distinctly to the Superintendent in such a man- 
ner as to obtain his decision upon it, and I merely suggest it as 
a matter, which has given rise to doubt. With regard to the 
right to punish, no general rules have been laid down, and it 
would be difficult, if not impossible, to make any which would 
Ije applicable to eveiy case. The practice of inflicting corporal 
punishment upon scholars in any case whatever, has no sanc- 
tion but usage. The teacher is responsible for maintaining good 
order, and he must be the judge of the degree and nature of the 
punishment required, where his authority is set at defiance; at 
the same time he is liable to the party injured for any abuse of 
a prerogative which is wholly derived from custom. 

The trustees must pay to the teacher the wages which they 
have contracted to give him; he cannot be put, against his con- 
sent, to the inconvenience of collecting his dues himself, and if 
the trustees, who made the contract with him, do not pay him 
any portion of his wages, he can prosecute them or their succes- 
sors in office for the whole amount. But unless they have made 
some specific agreement with him to the contrary, he cannot de- 
mand payment until after the expiration of the time allowed the 
collector for making his return to the warrant annexed to the rate 
bill. He must be presumed to have made his contract with full 
knowledge of the requirements of the law. The trustees are to 
be regarded as acting in a public capacity, and they cannot b@ 
required to do more than the law enjoins upon them, unless they 
have made themselves responsible individually by a specific agree- 
ment to do more. The statute gives the collector 30 days to 
execute the warrant, and the money by which the teacher is lo 
be paid will not be presumed to be in their hands until that time 
lias expired. He cannot before the expiration of that time de- 
mand his v/a,ges, ^nthout showing moneys in their hands for the 
purpose of paying him. 

Davis Gates, against the Trustees of school district 
No. 22 in the town of Clarence. 

Separate tenancies are exceptions to the general rule of taxation with respect t© 
farms lying partly in two districts. 

In this case school district No. 22 in the town of Clarence was 
formed so as to intersect a farm oc<;upied by the appellant, leaving 



SUPERINTENDENT OF COMMON SCHOOLS. 103 

a part of the farm in district No. 1, from which No. 22 was ta- 
ken. Mr. Gates' residence was on the part of the farm lying in 
tJistrict No. 22, and on the part lying in district No. 1, there 
were two tenants, each occupying specific portions of it. 

By John A. Dix, March 6, 1833. The general rule is that 
where a new district is formed, and the line is made to intersect 
a farm, the whole farm is to be taxed in the district where the 
owner resides. This would be the case with the farm in ques- 
tion, if Mr, Gates were the only occupant. But it appears that 
the two southern lots which are within the bounds of district No. 
1 are occupied by two tenants. Separate tenancies are excep- 
tions to the general rule above stated. The moment a part of 
a farm is leased it ceases to be an entire possession, and the part 
so leased must, with regard to taxation, be considered as follow- 
ing the residence of the lessee or tenant. The two tenants are 
taxable in No. 1 for the portion of the farm leased by them re- 
spectively, and Mr. Gates, whose residence is in No. 22, is taxa- 
ble in the latter for the residue. 

The Trustees of school district No. 4 in the town 
of Hinsdale, ex parte. 

The loss of the record of a school district does not disorganize it, but the com- 
missioners should describe the boundaries anew. 

If the time for the annual meeting is unknown, application should be made to 
the Superintendent to fix a day for holding it. 

This was a case, in which the clerk of a school district re- 
moved from it and carried away the book of records, and in con- 
sequence of the loss, the proper time for holding the annual meet- 
ing was unknown. It was also alleged that the description of the 
district in the town clerk's office was imperfect. 

By John A. Dix, March 9, 1833. The loss of the records 
of a school district does not disorganize and destroy it. If, in 
consequence of such loss, and the imperfection of the town re- 
<x)rds the bounds of the district have become uncertain, the de- 
fect ma)^be remedied by the commissioners who should meet and 
describe them anew.* 

If the time for the annual meeting is unknown, application 
should be made to the Superintendent of common schools who 
will by special order appoint a time for holding it. New dis- 
trict offic rs cannot be elected at a special meeting called for 
the purpose by the trustees or commissioners. This is not 
such a case as is contemplated by section 57, 1 R. S. page 
477, where a district is dissolved, nor is it such a case as is 

• See the case of the trustees of school district No. 13 in the town of Edmes- 
ton, against the commissioners of common schools of said town, page 79. 



104 CASES OKClDie'.D BY THE 

routoinplatcd by section 71, paj^e 480, where a vacancy exists ; 
l>ut, il id a H|)ocial case for whicii no })iovisiou has been made by 
law, anil the deCoct can only be remedied by the interposition, 
of the 8nperint(nident, who by virtue of the general authoritv 
conferred on him to pass upon all questions arising under the 
scluH>l laws, can alVord the re(]uircd relief. In the mean time, 
Uie old district ollkers hold over. 

The inhabitjiiits of school district No. 5 in the towns 
of Perrysburgh, agamsl the Commissioners of Com- 
mon Scliools of said town. 

luipivpoi- alttn-atioiKs in scliool districts will not be sanctioned lor the purpose of 
(luicting controversies. 

I'his was an appeal to the Superintendent under circumstan- 
ces fully explained by his decision. 

liy John A. Drx," March 13, 1833. It appears by the affi- 
davits presented in the matter of appeal from the proceedings of 
die con uuiss loners of connnon schools of tlie town of Perrys- 
burgh, that the suid conunissioners, on the 10th of January last, 
ilivided sduxil district No. 5 in said town, and formed a new 
district under the designation of school district No. 22. By this 
division district No. 5 is left with 28 children between the ages of 
5 and 1() years, and with taxable property amounting in value 
to $1,952: aiid district No. 22 is organizeti with 5 children be- 
tween the ages before ntentioncd, and with property of the vtilue 
of |>1,731. These districts united have neither too many chil- 
dren nor tix) nmch property to support a respectable school. On 
the contrary, as one district it would be inferior in strength to the 
average of the districts in the state; and yet this unequal divi 
sion, injurious to one district and ruinous to the other, has grown 
out of the tnnvillingness of the inhabitants hitherto to agree ujX)n 
t site for a school house on terms of friendly acconnnodation. 
The Superintendent feels it his duty to re-unite the districts; 
and in doing so, he trusts that he does not overrate the liberali- 
ty of the inliabitants in believing that they will come together 
again under the inlluence of better counsels, and with a readi- 
ness to adjust the matter of controversy, which has divided them, 
in a spirit of mutual conciliation. It is hereby ordered that the 
proceedings of the conmiissioners of common schools of the town 
of Perrysburgh, in dividing district No. 5, be annulled, and that 
tlie district be restored to its former !x»unds. 



SUPERINTENDENT OF COMMON aCIlOOI.S. 105 

Moses Rowley and others, against the inhabitants of 
school district No. 2 in trie town of Croton. 

U a district is unaltered, the site of the Hchool-house caa not be changed by a 
vote of 14 against 8, as this is not the legal majority required. 

Thirt was a case in which the aitc of a school-liousc was 
changed by a vote of 14 to 8, after an alteration had been made 
in the district. The alteration wa.s appealed from as illegal sub- 
sequently to the vote for changing the nite, and was declared void 
by the Superintendent. The district not having been legally 
altered the change of site was appealed from as unauthorized 
and illegal. 

By John A. DiX; March 14, 1833. It appears Ijy the affi- 
davits presented in the appeal of certain inhabitants of school 
district No 2 in the town of Groton, that the site of the school- 
house was changed by a vote of the district on the 12th of 
December last, in consequence of an addition of families from 
district No. 17 in Locke and Groton, and that the school-house 
was subsequently moved to a point fixed by individuals, who 
were by general agreement appointed for tfie purpose. It is 
alleged by the appellants that the vote for removing the school- 
house was taken by uplifted hands. This last allegation in 
not expressly negatived by the statement of the trustees, and 
it is admitted by the latter that the votes in relation to the 
new site, which had been fixed by the individuals appointed 
for the purpose, were 14 for and 8 against it. The act of 
17th February, 1831, among other requirements provides that 
whenever a school-house shall have been built or purchased 
for a district the site of such school-house shall not be chang- 
ed, nor the building thereon be removed, as long as the di&- 
trict shall remain unaltered, unless the commissioners shall con- 
.sent, and unless two-thirds of all those present at a sp<icial 
meeting of such district, called for that ptirpose, &c. shall vote 
for such removal, and in favor of the new site; the vote to be 
taken by ayes and nays, and the name of each voter, together 
with his vote, to be recorded. This act applies only to unaltered 
districts. Where therefore a school district has been lawfully 
altered, the school-house may Ijc removed by a vote of a majority 
of the taxable inhabitants, without the consent of the commia- 
woners. But if the district is not altered, the house can only be 
removed by the consent of the commissioners and a vote of two- 
thirds of the taxable inhabitants, to be taken in the mannei^ 
pointed out by the act referred to. 

By an order of the Superintendent, dated the 13th inst., the 
proceedings of the comrnis^^ioners of common schools of the towns 
of liocke and Groton, dissolving joint .school district No. 17, were 



106 CASES DECIDED BY THE 

declared to be of no effect. The bounds of district No. 2 io 
Groton have therefore never been altered, and not only the con- 
sent of the commissioners, but the votes of two thirds of the per- 
sons present are necessary to render the removal of the school - 
house legal. If the vote in favor of removing the school-house at 
the previous meeting had been taken in the mode prescribed by 
law, it appears, from the statement of the trustees, that the votes 
in favor of the new site were not sufficient, in point of number, to 
give validity to the proceeding. There were 22 persons present, 
and of these 14 were in favor of the new site and 8 opposed to it. 
Fourteen votes are two-thirds of twenty-one, but not of twenty- 
two, and are not therefore the legal number required. Without 
adverting to any other objection this alone is fatal to the pro- 
ceeding, and renders the removal of the school-house illegal It 
is therefore ordered, that the school-house be restored to its former 
site. 

The Trustees of school district No. 6 in the town oT 
Cobleskill, ex parte. 

If, from unavoidable necessity, a balance of the public moneys remains in the 
hands of the trustees, the district may receive its share of the public moneys 
the next year. 

This was an application to the Superintendent for his opinion 
in a case where a school had been kept in a district five months 
by a qualified teacher, to whom a portion of the public money 
was paid; the residue was retained for the fall term, but the 
tjustees, notwithstanding due diligence on their part, could not 
procure a teacher; so that at the end of the year a balance of 
tiie public moneys remained in their hands. 

By John A. Dix, March 16, 1833. The Revised Statutes, 
vol. 1, page 471, section 24, provide that no money shall be ap- 
portioned to a school district unless all moneys received from the 
commissioners of common schools during the year ending on the 
31st December preceding the apportionment shall have been ap- 
plied to the payment of the compensation of a qualified teacher. 
The same section also requires that a school shall have been 
kept in the district by a quahfied teacher during three months. 
The statute had in view two objects: 1st, to secure a proper 
school to the district, during a specific term; and 2d, to secure 
tlie application of the public moneys for the benefit of those who 
are entitled to them during the year for which they are appor- 
tioned. The penalty annexed to a non-compliance with these 
provisions is the loss of the pubhc moneys to the district the en- 
suing year. Cases may occur in which all the public money 
cx)uld not have been expended as contemplated by the statute. 



SUPERINTENDENT OF COMMON SCHOOLS. 107 

It may have happened that a teacher could not be procured, 
even by extraordinary diligence on the part of the tmstees; the 
teacher may have violated his engagement; or the district may, 
through some unforeseen accident, have been deprived of his 
services, so that all the public money could not properly have 
been expended. In every such case, where the school has been 
kept three months by a qualified teacher, it is just that the equi- 
table rights of the district should be preserved ; but this can only 
Ije done by a special interposition on the part of the Superinten- 
dent. The cases referred to are not provided for by the statute; 
but they have always been considered as coming within that 
general supervision of the common school system which the law 
has confided to the Superintendent. 

(anonymous.) 

If the title to the' site of the school-house fails, a new one may be fixed by a ma- 
jority of votes. 

By John A. Dix, March 18, 1833. If a district is divested 
of its supposed title to the site of a school-house, the inhabitants 
may choose another by the votes of a majority without the 
consent of the commissioners of common schools. Where the 
owner of the land on which a school-house stands, and which 
has been occupied by his suffiance merely, but without any for- 
mal agreement, refuses to allow it to be used for the purpose any 
longer, the district must be considered without a site, and may 
therefore designate one by a majority of votes, in the same man- 
oer as in fixing a site originally. 

The inhabitants of school district No. 6 in the town 
of Harpersfield, and of district No. 7 in Harpers- 
field and Kortright, against the Commissioners of 
Common Schools of said towns. 

New districts should not be formed without sufficient strength to support respect- 
able schools. 

The facts of this case are given in the Superintendent's de- 
cision. 

By John A. Dix. March 20, 1833. After a full examina- 
tion of all the papers presented in the matter of appeal of certain 
inhabitants of school district No. 6 in Harpersfield, and district 
No. 7 in Harpersfield and Kortright, from the decision of the 
commissioners of common schools of said towns, in refusing to 
form a new district, the Superintendent of common schools deenw 
it proper to sustain the said decision. 

He has not come to this determination without diflSculty. The 



108 CASES DECIDED BY THE 

situation of several of the appellants in relation to their respective 
schools is inconvenient, and the expense of education burden- 
some ; and if he could have afforded them the required relief, 
without doing injustice to long established districts, he would not 
have declined interposing for the purpose. But it appears by an 
examination of the papers submitted, that district No. 6 as now 
organized, has but 34 children between the ages of 5 and 16 
years, and a valuation of 15,370 dollars, and that district No. 
7 has but 29 children between the ages aforesaid, and a valua- 
tion of 10,449 dollars. The number of children and the amount 
of taxable property in each of these districts, is certainly no more 
than sufficient to support respectable schools ; and if the appel- 
lants should be set off from them and organized into a separate 
district, there is reason to apprehend that the interests of the old 
districts would suffer severely, without affording any material re- 
lief to the new. At all events, the relief afforded to the latter 
would hardly be sufficient to justify a measure which threatens 
the prosperity if not the existence of the old districts. In dis- 
tricts thinly inhabited, the evils from which the appellants seek 
to be relieved, are of frequent occurrence, and whenever they 
can be removed without producing others equally oppressive, the 
required relief will not be withheld. But the Superintendent is 
of opinion that the case before him, for the reasons above as- 
signed, is not so strong as to justify his interposition to overrule 
the decision of the commissioners. It must be left to them and 
their successors, to make the necessary alteration, at some future 
lime, should a change of circumstances authorize it, so that it 
can be done in justice to all parties. It is ordered that the ap- 
peal in this case be dismissed. 

The Trustees of school district No. 24 in the town 
of Fishkill, ex parte. 

Trustees are bound to know the condition of the taxable property of their dis- 
tricts, so that in assessing taxes no person shall be improperly taxed. 

Tliis was an application for the direction of the Superinten- 
dent in a case in which the trustees making the application had 
included in a tax-list a non-resident, who owned a lot of land in 
the district, partly cleared and cultivated, without making any 
deduction for the unimproved part. 

^Y John A. Dix, A'pril 1, 1833. It is the duty of the trus- 
tees of a school district to ascertain what property in their district 
is liable to taxation. They are required, it is true, to make out 
their tax-lists from the last assessment roll of the town. But 
they know that in town assessments all lands are included, whe- 
ther cultivated or not, while the law expiessly provides that only 



SUPERINTENDENT OP COMMON SCHOOLS. 109 

such part of the lands of non-residents as is cleared and cultivated 
shall be liable for taxes for common school purposes. It is mani- 
fest, therefore, that the assessment roll of the town is not a guide 
in all cases; it must of necessity be departed from sometimes, and 
it is the business of tiie trustees to inform themselves as to the 
condition of the taxable property of the district. It is not neces- 
sary for a non-resident to claim a reduction in such a case as this. 
It is enough tiiat the property was not taxable. The collection 
of that part of the tax which was assessed upon unimproved land 
cannot be enforced against the non-resident. 

The Trustees of school district No. 5 in the town of 
Ripley, ex parte. 

A tax-list must include all the taxable inhaliitants of the district at the time when 
it is made out, though some of them may have become so after the tax is 
voted. 

This was an application to the Superintendent for his opinion 
as to the propriety of including in a tax-list a person who moved 
into the district after the tax was voted, but before it was assess- 
ed by the trustees. 

By John A. Dix, April 4, 1833. Tax-hsts must inchide all 
the taxable inhabitants residing in the district at the time the 
lists are made out. 

It makes no difference, therefore, whether the individual re- 
ferred to in the case stated by you, was an inhabitant of the dis- 
trict or not at the time the tax was voted, provided he was re- 
siding in the district at the time the tax-list was made out. 

The inhabitants of school district No. 13 in the tovi^n 
of Ithaca, against the Commissioners of Common 
Schools of the towns of Ithaca, Enfield, and Ulys- 
ses. 

School districts must be composed of contiguous farms. 

The circumstances under which this appeal was brought are 
set forth in the Superintendent's decision. 

By John A. Drx, April 10, 1833. On the 28th of Febru- 
ary last the coin mission ers of common schools of the towns of 
Ithaca, Enfield, and Ulysses formed a new school district, desig- 
nated as district No. 27, by setting off a part of district No, 13 
in Ithaca, and three other districts east and west of it. From 
this proceeding sundry inhabitants of district No. 13 have ap- 
pealed. All the persons set off to form the new district acquiesce 
in the proceeding, with the exception of Anthony Davenport 
and Moses Van Orden, the former of whom has only one child 



110 



CASES DECIDED BY THE 



and no taxable property, and the latter taxable property to the 
value of $300, and no children. It does not appear that ei- 
ther of these two persons has any particular cause of dissatis- 
faction with the arrangement to which they object ; their oppo- 
sition to it rests upon the general grounds taken by the other 
appellants, consisting of a large portion of the inhabitants of dis- 
trict No. 13. The principal objection raised by the appellants to 
the division of district No. 13. is that the arrangement is such as 
to separate the lands of three persons who remain in district No. 
13 from the other territory which composes it. To this objec- 
tion the commissioners of common schools furnish no reply. The 
facts stated by the appellants are therefore assumed to be true. 
Without adverting to the other points presented by the appellants, 
this is of itself sufficient, in the estimation of the Superinten- 
dent, to justify a reversal of the proceedings of the commission- 
ers. School districts should be formed of contiguous farms ; and 
if the example of forming them of farms not adjacent to each 
other, should be sanctioned, it is difficult to foresee what disorder 
and confusion it might not create, besides opening a door to un- 
equal and unjust oiganizations. It is therefore ordered, that the 
proceedings of the commissioners of common schools of the 
towns of Ithaca, Enfield, and Ulysses, in forming school district 
No. 27, by an alteration of district No. 13 in Ithaca, and other 
adjoining districts, be, and they are hereby annulled. 

The Commissioners of Common Schools of the town 
of Berkshire, ex parte, 

A school district formed in October, may receive a portion of the public money, 
when the districts, from which it was taken, have complied with the law. 

This was a case, in which a school district was formed in the 
month of October, and in its annual repori dated the 1st of Janua- 
ry ensuing, the trustees could not state that a school had been 
kept in it 3 months by a qualified teacher during the year end- 
ing at the date of the report. The question submitted to the 
Superintendent vi'as, whether the district could receive a portion 
of the public money the year succeeding its formation. 

By John A. Dix, April 15, 1833. The annual reports of 
the trustees of school districts cannot embrace any transactions 
subsequent to the last day of December. The district referred 
to was formed in October. A school could not, therefore, have 
been kept for three months before the expiration of the year, 
when, if at all, its transactions should be reported. If under 
these circumstances, the district was formed from districts in which 
a school was kept three months, by a qualified teacher, it is en- 
titled to receive the public money according to the number of 



SUPERINTENDENT OF COMMON SCHOOLS. Ill 

children, over the age of 5 and under 16 years, on the same 
principle that the districts from which it was taken are entitled 
to their share. By referring to the act of 21st April, 1831, you 
will perceive that this is precisely the case contemplated by 
that act, and that section 26 of the school law is made to apply 
to it. The number of children residing in the district is there- 
fore, all the commissioners need to know. 

The Trustees of school district No. 3 in the town of 
Corinth, ex parte. 

If a school has not been kept in a district three months during the preceding 
year, by a qualified teacher, in consequence of any over-ruling necessity, the 
district will be allowed a portion of the public money. 

By John A. Dix, Ajjril 22, 1833. It has been made to ap- 
|>ear by the affidavit of Isaiah White and Aster Eggleston, two 
of the trustees of school district No. 3 in tlie town of Corinth, 
that a school was kept in the district more than two months 
by a qualified teacher during the summer of 1832, and that they 
engaged a teacher to commence his school, on the first day of De- 
cember of that year, but that he failed to perform his agreement 
and did not commence until the 17th of that month, by which 
nieans, the full term of three months, during which a school is 
required by law to be kept, in order to entitle the district to a 
share of the school moneys, was deficient to the number of three 
or four days. It further appears, that every exertion was made 
to procure another teacher, but without success. Under these 
circumstances, as no negligence appears on the part of the offi- 
cers of the district, and as the failure to comply, to the letter, 
with the requirements of the law, is the result of causes not un- 
der their control; it is hereby ordered, that the commissioners of 
common sc4iools of the town of Corinth, pay to the trustees of 
school district No. 3, iVe. amount of public money which that 
district would have been entitled to receive on the 2d Tuesday 
of this month, if the full term of three months had appeared 
by the report of the trustees to have been the period during which 
a school had been kept by a qualified teacher.* 



Collectors are allowed the usual fees of distress and sale, in addition to 5 cents 
on each dollar, when they take and sell the property of delinquents. 



(anonymous.) 

lal fees of distress ai 
?y take and sell the 

By John A. Dix, May 17, 1833. The fees of a collector 

* The principle of this decision is identical with that, by which the case of 
the trustees of school district No. 4 in the town of Somerset, page S4, was 
s^tUed. 



112 CASES DECIDED BY THE 

of a school district are regulated by the 104th section of the 
school act, when moneys are collected and paid over in the usual 
mode. But the 8Sth section supposes an extraordinary mode of 
collection, and in the cases contemplated, I consider the collec- 
tor entitled to the usual fees allowed by law in such cases, and 
also to the 5 per cent given by section 104. By the acts of 21st 
of April, 1831, and 26th April, 1832, all taxes (including rate 
bills) are to be collected by distress and sale of the goods and 
chattels of delinquents, where they are not paid on demand to 
the collector. The usual fees must be allowed in all such cases, 
and also 5 per cent for every dollar collected and paid to the 
trustees. The fees are an extraordinary compensation for ex- 
traordinar}'- trouble and service, and there is no authority to with- 
hold the 5 per cent. 

The inhabitants of school district No. in the 

town of Otto, ex parte. 

A verbal resignation by district officers is good. 

If the school district offices are all vacated by resignation, notice of such resig- 
nation may be given to the town cleric. 

When the offices in a school district are all vacant (he commissioners of com- 
mon schools may call a meeting to fill them. 

The material facts of this case are stated in the Superinten- 
dent's opinion. 

By John A. Dix, May 24, 1833. It appears that the trus- 
tees and cleik of the school district, within which you reside, 
resigned verbally to three justices of the peace of the town, and 
that the said justices filed a certificate to that effect with the clerk 
of the commissoners of common schools (tlie town clerk) of said 
town. The commissioners issued a notice for a district meeting, 
which was served by a taxable inhabitant in the manner prescrib- 
ed by law, when a district is formed ; the meeting was held accord- 
ingly, and new officers were elected. On this statement of facte 
it seems to me, that three questions only can arise — 1st. Was a 
verbal resignation sufficient? I am of the opinion that it was. 
It is undoubtedly desirable in all cases, that resignations should 
be in writing, in order that any dispute as to the tender of the 
resignation, may be settled by a reference to the document it- 
self. But the statute does not require that it shall be in writing, 
and it is therefore sufficient if it be verbally tendered. 2nd. Was 
the service of the notice on the town clerk, a sufficient compli- 
ance with section 73 of the Revised Statutes, relating to common 
schools? I think it was. The trustees and clerk had all re- 
signed. There was no person in off[ice, on whom the notice 
could be served, in strict conformity to the provisions of the sec- 
tion referred to. The justices of the peace were justified by the 



SUPERINTENDENT OF COMMON SCHOOLS. 113 

necessity of the case, in giving the notice to the town clerk, who 
was certainly the most proper person to receive it, as will appear 
from my answer to the next and last question. 3cl. Had the 
commissioners of common schools of the town authority to call a 
meeting for the purpose of electing officers to fill the vacancies 
in question? I think they had. Section 57 of the common 
school act, provides, that in case a school district shall be dis- 
solved, after having been formed and organized, "so that no 
competent authority shall exist therein to call a special district 
meeting," <fcc. the commissioners shall proceed to give the notice 
required in forming a new district. AMiough the resignation or 
death of all the officers of a district, who have any agency in 
calling special meetings may not absolutely dissolve the district, 
it is a case in which there is no competent authority existing in 
the district to call a meeting. It may, therefore, be fairly con- 
sidered as coming within the section last referred to, sind warrants 
the interposition of the commissioners : Hence the propriety of 
the service of the notice by the justices of the peace on the clerk 
of the commissioners. The new district officers should go on 
with the performance of their duties, if the above are the only 
questions raised in the matter of their election. 

The Trustees of school district No. 5 in the town of 
Blenheim, ex parte. 

The only three legal modes of providing fuel explaiKed. 

In district No. 5 in the town of Blenheim, it had been custo- 
mary at the annual meeting to give a contract for the wood to 
be furnished for the winter school to the lowest biddei' per cord, 
and a vote was then taken that the amount, when ascertained, 
should be paid by those who sent children to school. In the 
case, which gave rise to this application to the Superintendent, 
one or two individuals refused to pay for their proportion of the 
wood so furnished. 

By John A. Dix, Map 24, 1833: There are but three legal 
modes of providing fuel for the use of a school district : 1st. To 
lay a tax for purchasing it. 2d. To require the inhabitants 
sending children to school to furnish their just proportion ; and 
3d. If they refuse on notice to provide it, the trustees may fur- 
nish it and charge the persons in default with the amount. None 
of these modes have been adopted in the case stated to me ; but 
the inhabitants of the district have agreed to pay for it, by an 
informal assessment on those who send children to school, the 
wood being furnished by the person who would engage to pro- 
vide it at the lowest price. To this mode there is no objection, 
so long as all acquiesce in it and pay voluntarily. But if any 



114 CASES DECIDED BY THE 

person concerned refuses to abide by the arrangement, the diffi- 
culty cannot be adjusted by a recurrence to the provisions of the 
law, which you will perceive affords no remedy in such a case. 
There is no authority to enforce the collection of a tax or assess- 
ment not imposed in the prescribed modes. 

The clerk of school district No. 24 in the town of 
New-Paltz, ex parte. 

A tax to pay the rent of a school-room cannot be assessed on those who send 

children to school. 
If trustees hire a room without being authorized by a vote of the district, they 

are personally responsible for the rent. 

In school district No. 24 in the town of New-Paltz, a tax had 
been voted for several successive years to pay the rent of a school- 
room, (the district being destitute of a school-house,) and paid 
voluntarily by the persons who sent children to school. In the 
case which gave rise to this application the usual vote had not 
been passed, but the trustees engaged a room and employed a 
teacher in pursuance of the customary practice. 

By John A. Dix, July 8, 1833. The law intends, where a 
school district is destitute of a school-house, that the rent of a 
house or room shall be paid by means of a tax assessed upon the 
property of the district. This cannot be done, however, unless 
the tax is voted by the taxable inhabitants. Nor can the 
amount of the rent be assessed and levied exclusively upon those 
who send children to school. They may, if they please, pay it 
by voluntary contribution, but it is not in the power of the inha- 
bitants of the district to annex such a condition to a tax. if the 
trustees hire a house or room without being authorized so to do 
by a vote of the district, they will be personally responsible for 
the rent, although it would be exceedingly illiberal on the part 
of the district, under the circumstances, to refuse to provide the 
means of paying it, if the house or room was hired in good faith 
and actually occupied as a school-house. 

The inhabitants of school district No. 7 in the towD 
of Freetown, against the Commissioners of Com- 
mon Schools of said town. 

If the annual meeting is void, the persons in office hold over; but the commis- 
sioners of common schools cannot, in such a case, call a meeting or appoint 
officers. 

The facts which gave rise to this appeal are given in the Su- 
perintendent's decision. 

By John A. Dix, Jidy 10, 1833. On examination of the ap- 



SUPERINTENDENT OF COMMON SCHOOLS. 115 

peal of certain inhabitants of school district No. 7 in Freetown, 
it appears that at the time fixed for the last annual election, only 
two of the inhabitants of said district appeared, and that they pro- 
ceeded to appoint district officers. Subsequently on the 30th April, 
1833, the commissioners of common schools of Freetown, on the 
application of some of the inhabitants of the district, issued a no- 
tice for a meeting for the purpose of electing district officers, there- 
by assuming the proceedings of the annual meeting at which only 
two persons were present, to be void. On further examination, 
and before the time for holding the meeting appointed by them, 
the said commissioners issued an order appointing two individu- 
als to district offices, which had become vacant, and which the 
district had neglected to fill, thereby acknowledging the legality 
of the proceedings of the annual meeting and virtually annulling 
their notice for holding another. The proceedings of the com- 
missioners are irregular and cannot be sanctioned. They had 
no authority to issue an order or notice for an election of district 
officers. After a district has been organized, and has not been 
dissolved, and so long as there is any competent authority with- 
in to call special meetings, elections must take place at the an- 
nual meetings of the inhabitants, at special meetings called to 
fill vacancies, or at a meeting ordered by the Superintendent of 
common schools. In this case the district had not been dissolv- 
ed. If, therefore, the proceedings of the first meeting were valid, 
the officers chosen by the persons there present, were the lawful 
officers of the district. If the proceedings of that meeting were 
not valid in consequence of the neglect of a sufficient number of 
the inhabitants to assemble, then the persons in office would hold 
over till the next annual meeting. In either case the commis- 
sioners had no power to call a meeting for the election of district 
officers. 

The Superintendent does not deem it necessary or proper to 
say what number of the inhabitants of a school district, assem- 
bled in pursuance of a notice regularly given, at the time and 
place fixed for the annual meeting, shall be sufficient to render 
legal an election of district officers. Every such case will be de- 
termined upon an examination of the attending circumstances. 
But if the inhabitants of a school district take so httle interest in 
its concerns as to neglect to attend their annual meeting at the 
proper time and place, they can have no just cause to complain 
if they find district officers imposed on them by a very few 
votes. 

In consideration, however, of all the facts of this case, it is 
hereby ordered, that the trustees of school district No. 7 in Free- 
town, who were in office previous to the last annual meeting, 
which was attended by only two of the inhabitants, do immedi- 



116 CASES DECIDED BY THE 

ately give notice, in the manner iiequiied by the 56th section of 
the Revised Statutes relating to common schools, to all the tax- 
able inhabitants of said district, to meet at a certain time and 
place, which shaii be specified in said notice. When the inha- 
bitants, or such of them as may attend, sha;ll be assembled, they 
will proceed to elect officers for the district, who will serve until 
their next annual meeting. Immediately after such election 
shall have been made, the time and place for holding the next 
annual meeting will be fixed. 

The Trustees of school district No. 5 in the town of 
Ripley, ex parte. 

After a lapse of months proceedings will not be disturbed on a mere allegation 

of irregularity. 

School district No. 5 in the town of Ripley, having become 
disorganized, and no competent authority existing therein to call 
a meeting of the inhabitants, the commissioners of common 
schools prepared a notice appointing time and place for a district 
meeting, and delivered it to one of the taxable inhabitants, who 
served it on th« others. The meeting was held in pursuance of 
the notice, district officers chosen, and a tax voted to build a 
new school-house, the old one having become dilapidated. The 
construction of the school-house was immediately commenced, 
and the tax was assessed; but objections having been raised by 
some of the inhabitants to the regularity of the proceedings of 
the commissioners, the trustees, with the hope that the opposi- 
tion would er'e long be abandoned, neglected to issue a warrant 
for the collection of the tax. The exception taken to the pro- 
ceedings of the commissioners was, that their notice did not con- 
tain a complete description of the boundaries of district No. 5, 
but merely referred to them as before established and described 
in the town records. Under these circumstances, and after the 
lapse of several months, the direction of the Superintendent was 
solicited by the trustees. 

By John A. Dix, August 1, 1833. If all the inhabitants of 
your school district received proper notice of the meeting called 
by the commissioners, I will not allow a mere irregularity in 
the form of the notice to vitiate the subsequent proceedings. 
Where an irregularity occurs in the proceedings of school officers, 
exception should be taken to them by appeal within thirty days. 
But if the defect is not taken advantage of, a party cannot be 
permitted to come in after a lapse of months and object to pro- 
ceedings on account of a mere irregularity. If the commissioners 
had acted wholly without authority, the ccise would be different; 
but £is they had full power to act, and as the district has been 



SUPERINTENDENT OP COMMON SCHOOLS. 117 

regularly organized, a tax voted, and the construction of a 
school-house commenced, and no exception taken to the pro- 
ceedings by the parties concerned within the time limited by re- 
gulation, I will not allow the district to be disturbed by inquir- 
ing into the correctness of those proceedings upon a bare allega- 
tion of irregularity. If the inhabitants, or any part of them, re- 
fuse to pay OU' demand their portion of the tax voted for erecting 
the school-house, I will, on application, grant an order authoriz- 
ing the amount due to be collected, unless cause to the contrary 
shall be shown. In case of such an application, it will be pro- 
|»er to notify the persons who refuse to pay.* 

The Trustees of school district No. 12 in the town 
of Williamson, ex parte. 

Taxes ought to be assessed within the time prescribed by law. But quere? 
Whether trustees may not assess them after the expiration of the time? 

If the inhabitants of a district direct a tax to be collected in a mode not recog- 
nized by law, and the trustees execute such direction, the Superintendent 
will not interfere. 

In the year 1833 a tax was voted in school district No. 12 in 
the town of WilHamson, to build a school-house. For the pur- 
pose of saving the collector's fees it was agreed, at the same time, 
that the trustees should not make out a formal tax-list, but that 
each individual should pay the amount due from him into their 
hands, when the money should be required for constructing the 
house. It was, however, understoood that in case any one re- 
fused to pay, a warrant should be made out, and the collection 
of his portion of the tax enforced against him. All the inhabi- 
tants paid their proportion of the tax voluntarily, excepting A. H. 
who repeatedly promised to pay, but after the lapse of a year re- 
fused to do so. In this state of things the trustees appUed to the 
Superintendent for his direction. 

By John A. Dix, August 1, 1833. The Revised Statute re- 
lating to common schools, provides, that every district tax shall be 
assessed and the tax-list thereof be made out by the trustees with- 
in one month after the tax shall have been voted ; a warrant 
directed to the collector must also be annexed thereto, and the col- 
lector must make his return within a certain time. If all this be 
not done within the time limited, the tax should be voted anew. 
Property in school districts is frequently changing hands, and a 
tax levied for the benefit of a district should be paid by those who 

* If the circumstances under which the decision of the supreme court in the 
case of Ring vs. Grout, (see page 18, note,) are correctly apprehended, the case 
above reported is identical with it. That the principle of the decision of the su- 
preme court is applicable to this case there can be no doubt. 



118 CASES DECIDED BY THE 

vote it. If trustees may defer making out an assessment more 
than a month, they may for a year, and purchasers may fre- 
quently find themselves burdened with a tax in laying which 
they had no voice, and from which they can derive no benefit, 
as in the case of a sum raised to pay for fuel, which has been 
consumed. The directions of the statute ought, therefore, to be 
strictly pursued, and no agreement among the inhabitants can 
have the effect of superseding those directions even with the assent 
of all the individuals affected by such agreement. If A. H. pro- 
mised to pay his portion of the tax, and the trustees relied on 
his promise instead of enforcing the collection of the tax in the 
manner prescribed by law, it is at their peril, or at the peril of 
the district, if the understanding was that the collection might 
be deferred beyond the time limited, and made in a mode not re- 
cognized by the statute. The parties have undertaken in this case 
to set aside the requirements of the law altogether. They have 
done so for the purpose of avoiding the payment of the collector's 
fees, and the matter must now be arranged among themselves. 
The authority of the trustees to make out a tax-list after the lapse 
of a month, may not, in strict construction of law, be vacated by 
their neglect to do it within that time. The general lule is, that 
" where a statute specifies the time within which a public officer 
is to perform an official act regarding the rights and duties of 
others, it will be considered as directory merely, unless the na- 
ture of the act to be performed, or the language used by the le- 
gislature shows that the designation of the time Avas intended as 
a limitation of the power of the officer." 6 Wendell, page 487. 
Neither the nature of the act to be performed, nor the language 
of the law in respect to the assessment of taxes in school districts, 
may be such as to render it an exception to the general rule ; 
but when it is considered that the remedy in enforcing the col- 
lection of such taxes, is solely against the personal property of 
the individuals on whom they are assessed, that it does not reach 
the real estate lying in the district, and that "the taxable inha- 
bitants residing in the district at the lime of making out the tax- 
list," are the only persons who can be included in it, certainly 
every principle of equity demands that there shall be no delay in 
enforcing the collection. But independently of an)'^ considera- 
tion affecting the right of trustees to make out a tax-list after the 
time prescribed, there are difficulties in this case which are, in 
the opinion of the Superintendent, insuperable. If the trustees 
were to be authorized to make out a tax-list now, they would be 
compelled to assess the whole tax upon " all the taxable inhabi- 
tants residing in the district at the time of making out the list," 
and they must, of course, add five per cent for collector's fees oa 
the whole amount. They might, in their direction to the collec- 



SUPERIMTENDENT OF COMMON SCHOOLS. 119 

tor, give credit to all the inhabitants who have paid, and thus, 
in effect, make the warrant applicable to A. H. alone, he being 
the only delinquent. But after having deprived the collector of 
his fees on the greater part of the tax, it would be unjust to him 
to require him to collect a small balance. The Superintendent 
has decided that the vote of a district meeting reducing the fees 
of the collector has no validity ; that the law fixes his fees at five 
per cent on each dollar collected and paid over by him, and that 
this provision cannot be affected by the vote of a district meeting. 
He has also decided that trustees have no authority to receive 
taxes from individuals, and thus deprive the collector of the fees 
to which he is entitled.* To allow a warrant to issue for the pur- 
pose of collecting the amount due from A. H. would indirectly 
sanction a practice which has been uniformly condemned, and 
would give countenance to a laxity of proceeding, which is a 
{)erpetual source of embarrassment and controversy. Under all 
the circumstances of this case, therefore, the Superintendent 
deems it most proper not to interfere ; and it is submitted to the 
inhabitants of the district whether they had not better make up 
the deficiency out of their own pockets, and learn from it the les- 
son that it is always most safe to pursue the course pointed out 
by the law instead of attempting to set aside its requirements. 
The absence of a legal remedy against A. H. constitutes no jus- 
tification of his conduct. He who will avail himself of a techni- 
cal advantage to violate his repeated promises and evade his pro- 
per share of a burden so essential to the well being of his neigh- 
borhood as the support of the district school, will be hkely to lose 
in character much more than he will gain in pecuniary benefit. 

The inhabitants of school district No. in the 

town of Cairo, ex parte. 

No child residing in a school district can he excluded from the school on account 

of the inability of the parent to pay his tuition. 
Select schools cannot be kept in district school-houses. 

This was a case in which the trustees of a school district au- 
thorized a teacher to open a select school in the district school- 
house, giving notice that no child would be admitted unless his 
parent or guardian became a subscriber at a stipulated price for 
each scholar. 

By John A. Dix, August 13, 1833. The trustees of a school 
district are by the statute charged with "the custody and safe 
keeping of the district school-house ;" but they are not to em- 
|:4oy it for any other uses than such as conduce to the benefit of 

* See the case of Isaac Sherman, collector of school district No. 4 in the town 
of Spencer, against the trustees of said district, page 54. 



120 



CASES DECIDED BY THE 



the district. The school-house is provided by a tax upon the dis- 
trict, and it should not be used for private purposes. If a school 
is opened in it, every inhabitant of the district is entitled to send 
his children to it, for w^hich, privilege he must pay his proportion 
of the teacher's wages. No child, residing in the district can be 
excluded from it on account of the inabiUty of the parent to pay 
for his tuition. Every school which is opened ina district school- 
house is to be considered as a public school, so far as- the right of 
the inhabitants to send to it is concerned ; and this right cannot 
be impaired by the manner in which the school has been got 
up. Select schools should not be kept in, district school-houses. 
The teachers of such schools can, of course, receive none of the 
public money. If the practices alluded to in your letter prevail 
in your district, I will on complaint to me, with notice to the 
trustees, make an order directing them to be discontinued. 

The Trustees of school district No^ in the town/ 

of Hornellsville, ex j^arte. 

Certificates of qualification given after the commencement of a term^ are good^ 
in some cases. 

Tlie inspection of a teaclier after th« close of aterm* with a view to enable 
him to receive the pubUc money, is inadmissible, excepting under extraordi- 
nary circumstances. 

This was an application for the opinion of the Superintendent 
in a case where the trustees of a school district employed a fe- 
male teacher who had received certificates of qualification from 
the inspectors of two different towns during the two preceding 
years, neither of which certificates, however, were dated within 
a year from the time when she commenced her school. Before 
the close of the term, she applied to the inspectors for an exami- 
nation, which they refused to grant, upon the ground that she 
was not a qualified teacher at the commencement of the term, 
and that they could not render her so by giving her a certificate 
then. 

By John A. Dix, September 14, 1833. Teachers of com- 
mon schools should, at the time they are engaged, hold a certifi- 
cate of qualification, dated within a year, from the inspectors of 
common schools of the town in which they are employed. In 
extraordinary cases (and I consider the case stated by you to 
be such a one,) certificates have been given and accepted as 
sufficient, though dated subsequently to the commencement of 
the term. The inspectors were in duty bound to inspect the 
teacher, and to give her a certificate dated on the day of her 
examination, leaving the sufficiency of the certificate for any pur- 
pose to be determined by the proper authority. Trustees are in- 
excusable for neglecting to ascertain when they employ a teacher 



SUPERINTENDENT OF COMMON SCHOOLS. 121 

that he or she holds a sufficient certificate ; but at the same time, 
if the teacher is quahfied excepting in the mere form of holding 
a certificate dated previous to the commencement of the term, I 
should deem it my duty on appeal to protect the rights of the 
teacher and the district, by giving effect, so far as may be done 
with propriety, to^ a certificate dated subsequently to the com- 
mencement of the term. But I should not consider it proper to 
treat a teacher as qualified, according to the intention of the 
law, who had not obtained a certificate till after the expiration 
of the term, unless the inspectors, as in this case, had refused 
to examine him or her on application to them for that purpose, 
or unless some overruling necessity had prevented a coinpliance 
with the conditions of the law. 

(anonymous.) 
Teacher may dismiss his school on Saturday afternoon. 

By John A. Dix, September 18, 1833. In reply to the que- 
ries contained in the statement left at my office some weeks ago, 
I now proceed to give the required information. 

1st. If a teacher is employed by the week, he is bound to 
keep his school open from Monday morning until Siaturday noon. 
He is not bound to keep school on Saturday afternoon, unless he 
has expressly agreed so to do. 

2d. A teacher has a right to dismiss his school on Saturday 
afternoon under a contract to teach by the- month or week, and 
still he is to receive credit for an entire day, unless by the terms 
of the contract he has engaged to teach on Saturday afternoon. 
There is no inconsistency in decision 81 of the Superintendent 
of Common Schools, published with the common school law.* 
"If the school is dismissed on the afternoon of Saturday, the 
teacher is not required to make up the time after the expiration 
of his month." In other words, he may dismiss his school on 
Saturday afternoon, and yet each Saturday is to be reckoned as 
a whole day in making up the twenty-six days which constitute 
the month. " If he keeps the whole day, he does not gain time 
thereby, but must continue his school until the month is fully 
ended." That is, although he has a right to dismiss his school 
on Saturday afternoon, yet if he does not choose to do so, Sa- 
turday is still to be reckoned as one day, precisely in the same 
manner as if he had dismissed his school for the afternoon. 
This rule does not conflict at all with that part of the decision 
which declares 26 days to be a school month. A quarter of 26 
days is a quarter of a school month, but a quarter of a month^is 

• See a case decided January 20, 1830, by A. C. Flagg, page 57. 



122 CASES DECIDED BY THE 

not a week. A week is not a component part of a calendar 
month, which is computed altogether by days. Where a teacher 
contracts to teach a school for one month, he is to keep his school 
open 26 days, with the exception that it may be dismissed on Sa- 
turday afternoon, and yet he will receive credit for a whole day. 
3d. The right to dismiss a school on Saturday afternoon re- 
sides with the teacher. It depends, however, wholly upon usage, 
and the trustees of a school district may entirely control it by in- 
serting in their contract with the teacher, a provision which 
shall make it obligatory qn him to teach during the whole day 
on Saturday. Such a provision I should consider unwise. If 
children study diligently during five days and a half in the 
week, they ought to be allowed half a day for amusement and 
recreation. 

The Commissioners of Common Schools of the town 
of Marbletown, ex parte. 

Where a new district is formed, and the trustees of the district from which it is 
taken do not consent to the alteration, no act can be done in pursuance of it 
until three months after notice. 

In the spring of 1832 the commissioners of common schools 
of the town of Marbletown formed a new school district, by the 
consolidation of two existing districts, and prepared a notice for 
a district meeting within 20 days, and delivered it to a taxable 
inhabitant. The trustees of neither district consented to the 
consolidation, but notice in writing was given to them, A meet- 
ing was held, in pursuance of the notice given by the commis- 
sioners for the purpose, and the district was organized by ap- 
pointing officers. In the fall of 1832, in consequence of some 
objections to the former proceedings, the commissioners issued a 
second notice for a district meeting, which was held accordingly, 
and another set of officers elected. The question submitted to 
the Superintendent was, which set of officers was legally chosen. 

By John A. Dix, September 18, 1833. It has always been 
held by the Superintendent of Common Schools that no act 
could be legally done towards the organization of a new school 
district, by the inhabitants thereof, (unless the consent of the trus- 
tees of the district or districts from which it was taken had been 
obtained,) until three months after service of a notice in writing 
upon the latter. The reasoning upon which the rule is founded 
is this. The law provides that no alteration in a school district, 
made without the consent of the trustees, shall take effect until 
after three months, &c. No competent authority, therefore, can 
exist in a new district to hold meetings nnd elect officers until 
after the three months have expired. The commissioners of 



SUPERINTENDENT OF COMMON SCHOOLS. 123 

common schools, after forming a school district must issue a 
notice within twenty days describing the district and appointing 
time and place for the first district meeting. But, unless the con- 
sent of the trustees of the district out of which the new one was 
formed has been obtained, the time appointed for holding the 
meeting ought not to be within three months from the time of 
serving notice of the alteration upon them. 

Although the warrant for holding an election, (i. e. a notice 
for the first district meeting,) was issued within 20 days after the 
formation of the district, it does not appear whether the election 
was appointed on a day within three months from the time of 
serving a written notice on the trustees of the two districts af 
fected by the consolidation. 

If the first election was held after the expiration of three 
months from service of such notice, it was valid and the second 
election was void. 

Joseph Allen and others, against the inhabitants of 
school district No. 11 in the town of Oppenheim. 

An error being shown in counting the votes at a district meeting, for a tax for 
building a school-house, a new meeting will be ordered. 

The facts of this case are given in the Superintendent's order. 

By John A. Dix, /September 20, 1833. On examination 
of the appeal of certain inhabitants of school district No. 11 in 
the town of Oppenheim, from the proceedings of a district meet- 
ing held on the 15th July last, it appears that a vote was taken 
to build a new school-house, and was declared by the moderator 
to be carried. The moderator swears to these facts, and adds, 
that he kept minutes on paper of the votes taken at the meeting, 
and that, from an examination of said minutes afterwards as 
well as Irom other circumstances, he is satisfied there was an 
error in his decision ; that there was an equal number of votes 
tor and against building a new house, although he supposed 
when he announced the vote that there was a majority of one 
in favor of it. 

Without regard to any other testimony this alone is suflficient, 
in the opinion of the Superintendent, to require that the question 
should be again submitted to the district. In the adoption of a 
measure so important to a school district as that of building a 
school-house nothing should be left to uncertainty. The opinion 
of the parties should be so clearly expressed that it cannot be 
drawn into dispute and thus made a source of controversy. 

It is therefore ordered, that the proceedings of the meeting 
held in district No. 11, on the 15th July be set aside, and that 
the question of building a new school-house be submitted U^ a 



124 CASES DECIDED BY THE 

meeting of the taxable inhabitants of the district, to be called for 
that purpose at an eaxly day by the trustees. 

Amos Haskins, against the Trustees of school district 
No. 5 in the town of Ripley. 

Trustees have no right to include in a rate bill a sum of money to procure pre- 
miums for scholars; nor can a tax be laid for the purpose. 

This was a case in which a sum of money to procure' pre- 
miums for the most meritorious scholars was included in ■ a rate 
bill for the teacher's wages, made out by the trustees in pursu- 
ance of a vote of the inhabitants of the district. 

By John Ai Dix, September 20, 1833. The trustees had 
no right to include in the rate bill a sum of money for the pur- 
pose of giving premiums to the scholars, whether directed so to< 
do or not by the inhabitants of the district. The inhabitants of 
the district had no right to give such a direction or to lay a tax 
for the purpose. The objects for which a tax may be laid by 
the inhabitants of school districts are specified by law, and a tax 
cannot, therefore, be lawfully voted for any other purpose what- 



ever. 



The Commissioners of Common Schools of the town 
of Edmeston, ex parte. 

The school fund of Edmeston must be applied exclusively for the benefit of 
the common schools of the town. 

This was an application for the opinion of the Superintendent 
as to the propriety of applying the moneys derived from- the Ed- 
meston school fund for the indiscriminate benefit of all the children 
attending school in a joint district lying partly in the town of 
Edmeston and partly in the town of Plainfieldp or whether 
it should be applied exclusively for the benefit of such children 
attending school in said joint district as resided within the town 
of Edmeston. 

By John A. Dix, September 21, 1833. The sixth section 
of the act of the 26th February, 1828j laws of N. Y. sess. 51, 
chap. 44, provides that the interest of the common school fund 
of the town of Edmeston " shall invariably be appHed to the 
support, use and benefit of the common schools of the said 
town." 

The 11th section of the same act provides in like manner 
that the interest of the common school fund aforesaid "shall be 
applied to the support of common schools therein," i. e. in the 
town of Edmeston, and shall be distributed in the same man- 



SUPERINTENDENT OF COMMON SCHOOLS. 125 

ner as the public money ap|«opiiated for the support of common 
schools is now distributed by law. 

The true interpretation of these provisions seems to be, that 
the interest of the fund referred to shall be applied exclusively 
to the use of the common schools in the town of Edmeston, and 
that it shall be distributed among those schools as the public 
money is distributed among them. Thus, it would be the duty 
of the commissioners of common schools of the town of Edmes- 
ton iu the case of your district, part of which lies in Plainfield, 
to pay over to the trustees such a sum only as they would be 
entitled to receive upon an enumeration of the children between 
the ages of 5 and 16 years residing in the town of Edmeston; 
and the trustees would be bound, under the express provisions 
of the act above quoted, to apply it to the benefit of those chil- 
dren. Otherwise, it would be applied to the " support, use and 
benefit" of children in the town of Plainfield, which was clear- 
ly not intended. Independently of the express provisions of law, 
to which I have referred, it seems to me that on the score of jus- 
tice such should be the application of the interest of the Edmes- 
ton school fund. In joint school districts, the public moneys are 
sliared equally by all who attend school, and this is equitable, 
as each part furnishes its quota of public money, although the 
proportion, compared with the number of children in each part, 
may not always be exactly equal. But in this case the children 
attending school from Plainfield would have the benefit of the 
Edmeston school fund without furnishing any equivalent, un- 
less it has also a common school fund. But if it has such a 
fund, I think the manifest intention of the law should prevail, 
and the proceeds of the fimd of each town be applied exclusively 
to its own schools. As the matter stands, I consider it perfectly 
clear that the children of your district residing in Edmeston and 
attending school, should have the exclusive benefit of the sum, 
which your trustees receive from the commissioners of common 
schools as interest of the common school fund of that town. 

The Trustees of school district No. 4 in the town of 
Cobleskill, ex parte. 

When a new district is formed, the pubhc moneys on hand in the old district 
should be equitably divided. 

The facts of (his case are fully stated in the Superintendent's 
decision. 

By John A. Dix, October 3, 1833. I have received affida- 
vits in support of, and in opposition to, an application from 
school district No. 4 in the town of Cobleskill, for its proportion 



126 



CASES DECIDED BY THE 



of the school moneys apportioned, on the first Tuesday of April 
last, to district No. 8, from which the former was taken. 

It appears that district No. 4 was formed by the commission- 
ers on the 30th of March, and that the trustees of district No. 
8 did not consent to the alteration, which was made in the latter 
district. The new district could not, therefore, go into opera- 
tion, nor could the inhabitants thereof do any act with a view 
to its organization, until three months after notice in writing to 
some one or more of the trustees of No. 8. At the time the pub- 
lic moneys were apportioned by the commissioners of common 
schools, district No. 4 did not exist as an independent organiza- 
tion, and they would have been altogether inexcusable in re- 
cognizing it as such by allotting to it any portion of those mo- 
nej^s. They were right in the execution of their duty. 

But district No. 4 having soon afterwards been organized, 
with the consent of the trustees of district No. 8, who admit 
that they gave their consent in order that the former might go 
into immediate operation, a new question is presented, which 
has a very material bearing upon the merits of the application. 
Is not the new district entitled to receive from No. 8 such propor- 
tion of the public money as it would have been entitled to, if its 
organization had been perfect on the day of the apportionment. 
There is no doubt on this subject, unless the pubhc moneys have 
already been expended for the common benefit of both districts 
or appropriated by vote of the district to a previous term. On 
every ground of equity No. 4 is entitled to a just proportion of 
the public moneys, unexpended or unappropriated as aforesaid, 
in the hands of the trustees of district No. 8 at the time the 
former became a separate district. The public moneys are ap- 
portioned for the benefit of all the children in a school district, 
and if a portion of the children are, by an alteration of the 
bounds of the district, annexed to a new one, an equitable propor- 
tion of the public moneys on hand and unappropriated as before 
stated, must be paid over for their benefit to the trustees of the 
new district, to which they are transferred. This rule appears 
to me to be just and in accordance with, the intention of the sta- 
tute in relation to the common schools. 

It will be proper, therefore, for the trustees of district No. 8, un- 
less they have been otherwise instructed by a vote of the district, 
to pay to any qualified teacher, who has been employed in the 
district previous to its division, so much of the public money as 
shall be necessary to compensate him for his services. But if 
they had in their hands at the time district No. 4 went into ope- 
ration, any public money not essential to that object, they mu&t 
divide it between their own district and No. 4 according to the 



SUPERINTENDENT OF COMMON SCHOOLS. 127 

number of children over 5 and under 16 years of age remaining 
in one and set off to the other. 

The inhabitants of school district No. 7 in the town 
of Carhsle, ex parte. 

Trustees cannot be compelled to pay interest on school moneys in their hands, 
nor can the inhabitants cause it to be taken out of their hands and loaned at 
interest. 

This was an application from the inliabitants of school district 
No. 7 in the town of Carlisle, for the opinion of the Superinten- 
dent as to their right to require the trustees, by a vote at a dis- 
trict meeting, to loan at interest the public moneys received by 
them, until wanted to pay teachers' wages. He was also desired 
to state whether the trustees could be compelled to pay interest 
during the time those moneys remained unexpended in their 
hands. 

By John A. l)ix, October IG, 1833. The statute places 
the public moneys belonging to school districts in the hands of 
the trustees, and gives to the inhabitants the power of dividing 
it into portions to be applied to particular seasons of the year. 
Beyond this the latter have no power to control it. The trustees 
must keep the money safely, and pay it out as authorized by 
the inhabitants, or as the law requires if the inhabitants give no 
direction in relation to it ; but they cannot be made to pay inte- 
rest on it, nor can the inhabitants direct it to be taken out of 
their hands and loaned at interest to any other person or per- 
sons. 

The Trustees of school district No. 3 in the town of 
Chenango, ex jyarte. 

A school-house cannot be sold under execution on a judgment against the 
trustees of the district. 

George W. Drew, a teacher in school district No. 3 in the 
town of Chenango, commenced a suit before a justice of the 
j)eace against the trustees for the recovery of wages due him on 
a contract with their predecessors in office. No defence was in- 
terposed by the trustees, and judgment was rendered against 
them. Execution was issued, and the school-house, worth from 
$;1,200 to $1,500, was advertised for sale by the sheriff, the 
amount of the judgment being somewhat more than $30. The 
question submitted to the Superintendent was, whether the school 
house could be sold to satisfy the judgment against the trustees? 

By John A. Dix, November 4, 1833. No case like the one 
stated has come under the notice of my predecessor or myself. 



128 CASES DECIDED BY THE 

But it seems to me to be clear, from an examination of the law, 
that a school-house cannot be sold under execution on a judg- 
ment obtained against the trustees of the district. Although 
they are invested with certain corporate capacities, they are not 
in law a corporation with general powers. Their liabilities 
would not therefore be such as to authorize district property in 
their custody to be sold under executions against them, without 
some special provision of law to that effect. Besides, the Revis- 
ed Statutes, vol. 2, page 476, sec. 108, have made provision with 
regard to the collection of judgments against trustees of school 
districts, which are altogether inconsistent with such a proceed- 
ing. The trustees are made individually liable for judgments 
rendered against them, and the amount collected of them is to 
be allowed in their official accounts. If the sheriff' goes on to 
sell, the sale will be void. The best mode of settling the con- 
troversy will be for the trustees to pay out of any moneys in 
their hands belonging to the district, the amount of the judgment. 
If their predecessors have misapplied, or have failed to account 
for the moneys which came into their possession while in office, 
they should be prosecuted by the present trustees, under sections 
100, 101 and 102, 1 R. S. page 486. 

The Trustees of school district No. 35 in the town 
of Manlius, ex parte. 

Purchases of lard subsequent to the formation of a new district do not affect its 

boundaries. 

In the spring of 1833, school district No. 12 in the tovi^n of 
Manlius was divided, and district No. 35 formed by setting off" a 
part of the former. A. B. owned and occupied a farm, which 
by the division remained in No. 12 ; but immediately after the 
division he purchased a farm lying in No. 35, and annexed it to 
the farm he occupied, which was adjacent to it. The question 
submitted to the Superintendent was, whether the farm so pur- 
chased in No. 35 was liable to be taxed in that district for a 
school-house, or whether by annexing it to his own farm in No. 
12 it formed a part of the farm, so as to become taxable in the 
latter district. 

By John A. Dix, November 4, 1833. The farm purchased 
by A. B. in school district No. 35, Manlius, must be taxed in 
that district. If he had purchased it previous to the division of 
school district No. 12, and annexed it to his home farm, the case 
would be somewhat different. But as the matter stands, it 
seems to me that there can be no doubt about it. The farm 
was a part of district No. 35 when he purchased it. He cannot 
by purchasing and annexing it to a contiguous farm in another 



SUPERINTENDENT OF COMMON SCHOOLS. 129 

district, release it from its pre-existing liability to taxalioii in the 
district of which it was a part at the time of the purchase.* 

Robert Piatt and others, against the inhabitants of 
school district No. 8 in the town of Peru. 

The clerk of a school district cannot designate a place for an annual meeting 
when it has been omitted at the previous annual meeting. 

Two meetings being held at. different places on the same day as an annual meet- 
ing, a new one will be ordered. 

The facts of this case are stated in the Superintendent's deci- 
tiion. 

By John A, Dix, November 4, 1833. On examination of 
the appeal of certain inhabitants of school district No. 8 in the 
town of Peru, it appears that the annual meeting of the inha- 
bitants of that district, on the 1st Monday of October, 1832, was 
adjourned to the 1st Monday of October, 1833, at 4 o'clock, P. 
M. without appointing the place of meeting as required by law- 
It also appears that for many years the annual meetings of the 
inhabitants have been uniformly held at the district school-house. 
On the 28th of Sept. last the district clerk gave notice of the an- 
nual meeting for the day specified, to be held, ^' at the store-house 
of widow Craig, Peru landing," in consequence of the unfinish- 
ed state of a new school-house erected on the site of the old one. 
Notwithstanding this notice nine of the taxable inhabitants met 
at the new school-house, organized, and elected district officers, 
while another portion of them, fourteen in number, met at, the 
place specified in the notice, and also elected officers for the dis- 
trict. 

It is clear that the clerk of the district had no right to supply 
an omission in the proceedings of the previous annual meeting 
by appointing a place for holding the next. This duty is spe- 
cially enjoined by law upon the inhabitants of the district, assem- 
bled at their annual meeting; and if neglected, the defect can 
only be supplied by meeting at the usual place, or by the inter- 
position of the Superintendent of Common Schools, on applica- 
tion to him. If any place had been named by the clerk in his 
notice it should have been the usual place for holding the annual 
meetings; for this, if an}^, must have been intended by the in- 
habitants. The proper mode, therefore, of remedying the omis- 
sion in this case was for the inhabitants to meet at the school- 
house, and if found in an unfit condition for holding the meet- 
ing, they should have adjourned, after organizing, to some other 
place. In this manner the intention of the last annual meeting 
would have been satisfied, though the requirements of the law 

* See a case decided bv A. C. Flagg, October 18, 1830, p. 69. 

9 



130 CASES DECIDED BY THK 

would not have been strictly fulfilled. The clerk of the district 
acted without authority in appointing a place for the meeting; 
for he is only authorized by law to give notice of time and place 
when appointed by the competent authority. Yet, if the inha- 
bitants had assembled at the time and place specified in his no- 
tice; if there had been no surprize on the part of any, and no 
exception had been taken at the time, by objecting to the pro- 
ceedings, or by refusing to attend the meeting, it might be a 
question whether the result should be disturbed by the Superin- 
tendent on appeal, even though the requirements of the law had 
not been fulfilled, with regard to a designation of the place of 
meeting by the inhabitants at their last annual meeting, and 
though their intention had not been satisfied by holding it at 
the usual place. But as two meetings have been hel5, and as 
exception has been taken to one of them by a formal appeal to 
him, the question now presented is, whether he can, upon refe- 
rence to the provisions of the law, pronounce the proceedings ©f 
either to be valid. For the reasons already assigned, neither of 
the meetings appears to him to have been held with such con- 
formity to the requirements of the law as to give validity to its 
proceedings. The one held at the school-house, (the usual- 
place,) though held both without notice and in direct disregard 
of the notice given by the proper officer, might have been sus- 
tained if generally attended; but it was attended by a small num- 
ber only, with surprize on the part of many, who attended the 
other meeting under the misdirection of the clerk. On the other 
hand, the meeting at the store-house of the widow Craig was 
held in pursuance of an unauthorized notice, so far as the desig- 
nation of place is concerened. It was but partially attended, 
and with surprize on the part of some, who attended the meeting 
at the usual place, or at all events without their assent. Neither 
of these meetings can, therefore, be considered such a one as is 
contemplated by law. 

If the annual meeting had been altogether neglected, the Su- 
}3erintcndent would not, without strong reasons, interpose; and 
the trustees in office would, in pursuance of a rule already esta- 
blished, hold over another year. But in annulling the proceed- 
ings of the two meetings referred to, it seems proper that the 
choice of officers should be again submitted to the inhabitants 
of the district, and their preferences fairly ascertained. 

It is therefore decided, that the proceedings of the two meet-^ 
ings of the inhabitants of school district No. 8 in Peru, held on 
the 1st Monday of October last, are void and of no effect; and 
it is ordered, that a special meeting of the inhabitants of said dis-; 
trict be held on the fourth Monday of November instant, at the 
new school-house, at 4 o'clock in the afternoon of that day, fof 



SUPERINTENDENT OF COMMON SCHOOLS. 131 

the purpose of electing distiict officers, and for transacling any 
other business which may be brought before them. They will 
also appoint the time and place for holding the next annual 
meeting. The clerk of ihe district will give to the inhabitants 
such a notice of the meeting hereby appointed as is jequired by 
law when a special meeting is called by the trustees. 

William Ross and others, against the inhabitants of 
school district No. 4 in the town of Mentz. 

If at an annual meeting a reasonable time is not allowed to the inhabitants to as- 
semble, a new meeting will be ordered. 

The facts of this case are stated in the Superintendent's or- 
der. 

By John A. Dix, November 5, 1833. On the seventh day 
of October ult. the inhabitants of school district No. 4 in the 
town of Mentz, held their annual meeting at the school-house 
in said district. The hour appointed at the previous annual 
meeting was four o'clock in the afternoon, and regular notice 
thereof was given by the clerk of the district. About twenty 
minutes past four, when eight of the taxable inhabitants were 
assembled, it was proposed to organize and proceed to business, 
as the weather was unpromising, and it was desirable to close 
the proceedings before it was dark. To this proposition objec- 
tions were made by William Ross, who stated that much excite- 
ment prevailed in the district, and that there would undoubtedly 
be a general attendance of the inhabitants. He, therefore, urgctl 
that a reasonable time sliould be allowed for them to assemble. 
Notwithstanding these objections, the meeting proceeded to busi- 
ness, and when the trustees were chosen, only nine voters were pre- 
sent. Immediately after the election seven or eight more made 
their appearance, and before 5 o'clock 24 taxable inhabitants were 
present. Some of the latter, took part in subsequent proceedings, 
and a motion was made to reconsider the choice of officers, but 
the moderator refused to put the question to the meeting. Thus 
it appears, that the officers of the district have been chosen by 
nine persons, although by a dela}' of a fev/ minutes the Avishes 
of a large majority of all the taxable inhabitants might have 
been ascertained ; and this in opposition to the remonstrance of 
one, if not more, of the voters present at the organization of 
the meeting. Although it was the duty of all the voters to 
attend punctually at the hour appointed; yet it seems to the 
Superintendent that the haste with which the choice was made, 
and the refusal of the persons wlio made it, to admit of any 
participation in it by those who arrived subsequently and ex- 
pressed a wish to vote, evince a disposition to take an undue 



132 CASES DECIDED 6y THE 

advantage of their neighbors, who were equally interested with 
themselves in the prosperity of the district. At all events the 
wishes of the district have not been expressed ; and he feels sa- 
tisfied that the district officers, thus chosen by a small minority 
of the inhabitants, will, on reflection, see, as he does, the pro- 
j^riety of submitting their claims to the clearly expressed will 
of the majority. 

It is, therefore, ordered, that the choice of district officer made 
at the annual meeting of the inhabitants of district No. 4 in the 
town of Mentz aforesaid, on the 7th day of Oct. ult. be, and it 
is hereby set aside. And it is further ordered, that a special meet- 
ing of the inhabitants of said district be held on the fourth Mon- 
day of November instant, at the scliool-house in said district, at 
6 o'clock in the afternoon, for the purpose of choosing district of- 
ficers, and for the transaction of any other business which may 
come before it. The clerk of the district will give the inhabi- 
tants such a notice of the meeting hereby appointed, as is re- 
quired when a special meeting is called by the trustees of a school 
district, 

J, C. Van Buskirk and others, against the inhabitants 
of school district No. 1 in the tovvn of Aureliiis. 

Sites for school-houses should not be fixed without a fair expression of the opi- 
nions and wishes of the inhabitants. 

If the title to the site of a school- house fails, the inhabitants may select another 
precisely as though the district had never possessed one. 

Tlie toll-house and lot of a bridge company are not taxable as real estate. 

The facts of this case are fully stated in the Superintendent's 
order. 

By John A. Dix, November 6, 1833. On the 7th of Oc- 
tober ult. the inhabitants of school district No. 1 in the town of 
Aurelius, Cayuga county, held their annual meeting in pursu- 
ance of adjournment and public notice as required by law, seveii 
voters being present. After the election of district officers the 
meeting proceeded to vote a new site for a school-house, the build- 
ing used for that purpose having been consumed by fire, and the 
title to the former site having, as is alleged, proved defective. It 
was then resolved to build a new school-house, a tax of two 
hundred and fifty dollars was voted for the purpose, the dimen- 
sions of the building were prescribed, and the meeting was ad- 
journed to the 9th of the same month. 

To the proceedings of this meeting it is objected: That the 
vote given for changing the site of the school-house was in 
violation of the provisions of the Revised Statutes, vol. 1. page 
479, sec. 6G. 

By reference to the act of Feb. 17, 1831, sec. 6, (laws of 



SUPERINTENDENT OF COMMON SCHOOLS. 133 

N. Y. sess. 54, chap. 44,) it will be perceived that the provisions 
of the section above referred to are repealed, although they are 
re-enacted, with modifications, in the preceding sections of that 
act. 

The intention of the act of 1831, is, that the site of the school- 
house when it is once procured and fixed, and the house has 
been built or purchased, shall not be changed, excepting in the 
mode therein prescribed. But if a site has never been procured, 
none of the provisions of the act apply. It may be selected at 
any meeting of the inhabitants of the district, without such a 
special notice as is required by the 3rd section of the act of 1831. 
in like manner, if a site has been established and the title to it 
fails, the same principle must apply. The district is absolutely 
without a site. The site is not to -be changed, but it is to be 
chosen, precisely as though the district had never possessed one. 
To such a case it is manifest that the provisions of the act of 
1831 cannot be applicable. It could never have been intended 
that the commissioners of common schools should, when the ne- 
(^essity of the case is inevitable, be required to consent to the 
change or state it to be necessary; nor could it have been intend- 
ed that a vote of two-thirds of the persons present at a special 
meeting called for the purpose and qualified to vote therein, should 
be required to select a site when the district is without any, or 
even to remove the school-house, wdien the title to the ground has 
failed. The provisions of the act of 1831 being intended lor 
a particular case, none of them are to be considered applicable 
where the case in point has not occurred. 

It has been shown to the Superintendent of common schools 
by the affidavit of five persons, that the land on which the 
school-house of district No. 1, recently consumed by fire, stood, 
is " now owned by Henry Hopper, and that the school district 
have no title or claim to the land on which the said school-house 
was situated, by lease, deed, or otherwise." The district can- 
not therefore be considered as having such a site for a school- 
house as is contemplated by law, and the provisions of the act. 
of 1831 before referred to are wholly inapplicable to the case. 
The inhabitants of the district at any meeting when they are 
legally assembled, whether the notice for the meeting states a 
special purpose or not, may, by a majority of votes, select a site 
and lay a tax for purchasing it. If, however, there has been 
surprise on the part of any of the inhabitants, or if there is rea- 
son to believe that the sense of the njajority has not been fairly 
expressed, it is in the discretion of the Superintendent of Com- 
mon Schools, on appeal to him, to set aside the proceedings 
complained of, and order the question to be submitted anew ixj 
the district. 



134 CASES DECIDED BY THE 

It appears by the testimony of the applicants in this case, and 
by the admission of the appellees, that there were but seven per- 
sons present at the annual meeting on the 7th October, although 
as is stated by the former, the number of taxable inhabitants 
belonging to the district is between thirty-five and forty-five. 
The omission of voters to attend district meetings, where the le- 
gal notice has been regularly given, constitutes no just ground 
in ordinary cases for vacating the proceedings of such meetings. 
If the parties concerned will not attend, they have no right to 
complain that their business, through their own inattention, has 
been transacted by others, however small the number of persons 
who have disposed of it. The Superintendent will not, there- 
fore, disturb any portion of the proceedings of the annual meet- 
ing which relates to business ordinarily transacted at such meet- 
ings, such as the choice of district officers. But he deems it due 
to the quietude, if not to the permanent prosperity, of the district, 
that the choice of a site for a school-house should be again sub- 
mitted to the inhabitants. The position of the school-house is a 
matter of interest to the whole district, more especially as a change 
in the site, when it has been once permanently fixed, is embar- 
rassed by great difficulties; and it is due to all concerned that 
full opportunity should be given for making a fair and dehberate 
choice. The Superintendent would consider it unjustifiable on 
the score of equity alone, without reference to its bearing upon 
the tranquillity of the district, to allow a question of this magni- 
tude to be settled by a majority of seven persons, when at least 
thirty more have an equal interest in it. 

There are several minor objections to the proceedings of the 
meeting, which it is unnecessary, for the purposes of this deci'- 
sion, to notice. 

To the assessment made b)^ the trustees of the taxes voted for 
building a school-house and purchasing a site, it is objected that 
the Cayuga Bridge Company has been taxed $41 . 90 upon its 
property, valued at $7,000, in school district No. 1. 

On referring to the act of incorporation, and the several acts 
amending it, it appears that the Cayuga Bridge Company were 
authorized to construct a bridge " over the Cayuga Lake on the 
outlet thereof." and also to erect a permanent bridge across the 
Gayuga Lake between the villages of East and West Cayuga, 
in addition to their bridge built over the outlet of said lake. 

These bridges are both in use. The tolls of one are collect- 
ed in Aurelius within the bounds of school district No. 1, and 
the tolls of the other are collected in the town of Seneca Falls. 

The Revised Statutes, vol. 1, page 390, section 6, provide that 
'• when the tolls of any bridge, turnpike, or canal company are 
collected in several towns or wards, the company shall be as- 



SUPERINTENDENT OF COMMON SCHOOLS. 135 

sessed in the town or ward in which the treasurer or other offi- 
cer authorized to pay the last preceding dividend, resides." This 
provision, however, does not include the real estate of the com- 
pany. For it is provided at the beginning of the section that 
"the real estate of all incorporated companies liable to taxation 
shall be assessed in the town or ward in which the same shall 
be, in the same manner as the real estate of individuals," 

The affidavit of John C. Van Buskirk sets forth that ''the 
treasurer of the" Cayuga Bridge " Company, authorized to pay 
the last dividend, resides at Seneca Falls in Seneca county." 
The personal property of the company therefore, and the amount 
of its capital, exclusive of its real estate lying in other towns, is 
taxable in the town of Seneca Falls, although the value of the 
bridge terminating in Aurelius be included in that amount. 

However inequitable the operation of the rule in this instance 
may be, it is clearly a case within the provisions of the Revised 
Statutes above quoted. The property of the company, exclusive 
of its real estate in other towns, must be taxed in the town of 
Seneca Falls. It only remains then to be considered whether 
the company has any property in district No. 1, which comes 
within the definition of real estate. If it has nothing more than 
a house for the use of the toll gatherer, and a lot no more than 
sufficient for his accommodation, I am of opinion that they are 
to be considered, like the toll-house and gate of a turnpike com- 
pany, as a necessary appendage to the franchise, almost equally 
indispensable to its enjoyment with the bridge itself. The affi- 
davit of John C. Van Buskirk puts the value of the house and 
lot at ,$200 or $250, according to the ordinary standard of valu- 
ation adopted by the assessors of the town, an amount so small 
that it would be hardly reasonable to treat it as representing real 
estate distinct from the capital stock of the company. Upon a 
fiill view of the case, therefore, I think the property of the Cay- 
uga Bridge Company is not Uable to be taxed at all in the town 
of Aurelius. 

As upon these points the whole case may be disposed of, it is 
'unnecessary to take notice of the remaining objections to the 
proceedings of the two meetings from which the appeal under 
examination is brought. 

It is accordingly ordered, that the proceedings of the two meet- 
ings in school district No. 1, Aurelius, held on the 7th and 9th 
October ult., excepting so far as they relate to the choice of dis- 
trict officers, be and they are hereby anmdled ; and it is further 
ordered, that all subsequent proceedings by virtue of the votes 
taken at said meetings for selecting a site for a school-house, for 
laying a tax for the purchase of said site, and for laying a tax 
for building a school-house, be, and they are hereby set aside. 



136 CASES DECIDED BY THE 

And the trustees of said district are hereby required to call a spe- 
cial meeting of the inhabitants at an early day, for the purpose 
of announcing this decision, and of giving them the opportunity 
of taking such measures in the premises as upon reconsideration 
may appear to them to be due to the quietude and prosperity of 
the district. 

The inhabitants of school district No. 14 in the town 
of Richland, against the Commissioners of Com- 
mon Schools of said town. 

School districts should not be so reduced in strength as to be unable to maintain 
respectable schools. 

Dissensions in school districts cannot be allowed to be naade a ground for alter- 
ing or breaking them up. 

This was an appeal to the Superintendent under circumstan- 
ces which are fully stated in his decision. 

By John A. Dix, November 11, 1833. On the 31st day of 
August last, the commissioners of common schools of the town 
of Richland, Oswego county, formed a new district of a part of 
district No. 14 and other contiguous territory. From this pro- 
ceeding, the inhabitants of the latter appeal to the Superinten- 
dent of Common Schools. 

District No. 14, before it was divided by the commissioners, 
had 40 children between the ages of 5 and 16 years, and a tax- 
able property amounting to $4,370. By the alteration referred 
to, the number of children is reduced to 29, and the taxable 
property to $3,250. The Superintendent is decidedly of the 
opinion that the district, with such a reduction of its wealth and 
of the children upon whom the public money is apportioned^ 
would hardly be adequate to the support of such a school as is 
indispensable to the proper education of their children. It is tJue 
great evil of the common school system that the teachers are 
not always so well qualified as they should be. It is obvious 
tliat their qualifications will generally be in proportion to their 
compensation ; and it is an object of the highest importance to 
secure to every district the ability of maintaining a respectable 
school, by employing a teacher of the requisite learning and abi- 
lity. By preserving the district as it existed previous to the di- 
vision made by the commissioners, some of the inhabitants may 
be compelled to send a greater distance to school, and they may 
even be unable to send at all during some days in winter by rea- 
son of the state of the roads. But admitting all this to be true, 
the evil will be far less than that of reducing the strength of dis- 
trict No. 14 so much as to disable it for maintaining a respectable 
school. The Superintendent has no means of knowing the sita- 



SUPERINTENDENT OF COMMON SCHOOLS. 137 

ation of the inhabitants who were taken to form district No. 
22, excepting those who were set off from district No. 14. But 
he cannot consistently with what he deems due to the latter, 
sanction the alteration made by the commissioners. 

It is alleged that a personal difficulty has existed between 
some of the inhabitants of district No. 14, and that the district has 
thereby been kept in a perpetual ferment for sometime past. Al- 
though these dissensions are exceedingly to be regretted when 
they are allowed to influence the conduct of individuals in rela- 
tion to the education of their children, it would be extremely 
dangerous to allow them to be made a ground for altering or 
breaking up school districts. It is far better to trust to the good 
sense and sober reflection of the parties concerned, and to believe 
that they will, ere long, in a matter so deeply affecting the cha- 
racter and interest of their children, come together imder the 
guidance of more rational counsels, and sacrifice their private 
animosities to considerations of their own, as well as the common 
good. They cannot fail to see that without a spirit of modera- 
tion and forbearance the good order of society could not long be 
maintained, and that the benefits it is designed to secure could 
not be enjoyed in comfort or safety. 

It is hereby ordered, that the proceedings of the commission- 
ers of common schools of Richland, in the formation of school 
district No. 22, be set aside, and that the said district be, and it 
is hereby, annulled. 

The Trustees of school district No. 8 in the town of 
Cobleskill, ex parte. 

Public moneys are to be equitably divided when a new district is formed. 

The facts of this case are the same as stated in the Superin- 
tendent's opinion on the a^pplication of the trustees of school dis- 
trict No. 4 in the town of Cobleskill, page 125. 

By John A. Dix, November 12, 1833. By a rule heretofore 
(established by the Superintendent of Common Schools, whenever 
a new school district is formed after the public moneys are dis- 
tributed, the inhabitants who are taken to constitute it, are en- 
titled to receive from the districts from which they are set off, 
their just proportion of the school moneys apportioned to said dis- 
tiicts, according to the number of their children between 5 and 
16 years of age. Although this division of the public moneys 
is not made obligatory by law, it is in accordance witli the whole 
tenor of its provisions, and a different rule could not be set up 
without manifest injustice and an entire abandonment of the 
principle upon which the proceeds of the common school fund 
are distributed. The right to receive the school money as above 



138 CASES DECIDED BY THE 

Stated may be waived by the parties concerned, but it cannot be 
taken away without their consent. You will understand me as 
referring only to such portion of the public moneys in the hands 
of the trustees as is unexpended or unappropriated by vote of 
the inhabitants to a term preceding the division of the district. 

The new district (No. 4,) will, therefore, be entitled to receive 
from you $4.34, unless some portion of the school money, which 
you received, was appropriated to the payment of a qualified 
teacher for his services after the first of January last, and be- 
fore the division of your district. 

The inhabitants of school district No. in the 

town of Petersburgh, ex parte. 

School may be kept on Sunday for the benefit of persons who observe Saturday 
as holy time, and the teacher must be paid for that day by those who send to 
school. 

A teacher may receive the public money if he dismisses his school on Saturday 
and keeps it open on Sunday. 

This was an application to the Superintendent for his direc- 
tion in a case in which a large majority of the inhabitants of the 
district observed Saturday as holy time, and the teacher being of 
the same religious sect, kept his school open on Sunday and dis- 
missed it on Saturday. 

By John A. Dix, November 18, 1833. The laws of this state 
recognize Sunday as a day of public observance, by prohibiting 
the execution of civil process, pastimes, j&c, and travelling, ex- 
cepting for necessary or charitable purposes. Servile labor is also 
interdicted, excepting to those who uniformly keep the last day of 
the week (Saturday) as holy time. Such persons may undoubted- 
ly have a school on Sunday, provided it is kept under such circum- 
stances as not to disturb other persons in their observance of the 
first day of the week (Sunday) as holy time ; but they ca;nnot 
under the provisions of the law, compel the latter to contribute 
in any manner to its support. If a teacher keeps his school open 
on Sunday, those whose children attend pay him for that day ; 
but if he teaches from Monday morning till Friday night, he 
ought not to be deprived of the public money because he teaches 
on Sunday also. This is altogether too unimportant a matter 
either for the interposition of the Superintendent, or for any con- 
tention among yourselves. The teacher would be entitled to the 
public money for five days in the week, and as the inhabitants 
pay towards the balance of his wages, after applying the pubhc 
money, for so much time only as their children attend school, it 
seems to me that there is no hardship or injustice in the matter. 



SUPERINTENDENT OF COMMON SCHOOLS. 139 

(anonymous.) 

On certain holidays schools may be dismissed. 

By John A. Dix, November 21, 1833. The holidays on 
which a teacher may dismiss liis school, are such as it is custo- 
mary to observe throughout the country: as the fourth of July, 
Thanksgiving and New-Year. But these matters are not, it 
seems to me, of sufficient importance to give rise to any contro- 
versy between the trustees and teacher, by insisting on either side 
with too much tenacity upon any particular day beyon I those 
above mentioned. If it were usual, for instance, in the neigh- 
borhood, to dismiss school to enable the children to attend some 
local celebration, a proper liberality should be exercised towards 
the teacher in that respect. 

The inhabitants of school district No. 1 in the town 
of Hunter, against the Trustees of said district. 

Coloured persons ought not to be employed to teach white children. 

This was an appeal by some of the inhabitants of school dis- 
trict No. 1 in the town of Hunter, from the proceedings of the 
trustees of said district, in employing a coloured man to teacli 
the district school, which was attended almost exclusively by 
white children. 

By John A. Dix, November 25, 1833. The law is silent as 
to the description of persons to be employed as teachers, and it 
is, therefore, a matter wholly in the discretion of the trustees. 
At the same time I consider the employment of a coloured per- 
son to teach a school of white children as an unjustifiable exer- 
cise of authority, unless the parties concerned waive their objec- 
tions to it. It is unnecessary to inquire whether public opinion, 
with regard to the admission of these persons to the enjoyment 
of all the social privileges of the whites, is well grounded or not. 
It is enough that a distinction exists; that they are disqualified 
by the laws of the United States for the performance of services 
in the militia, and by the constitution of this state for the exercise 
of the right of suffi-age, without a qualification of property. 

Under these circumstances the trustees of school districts, 
whose duty it is to cultivate a spirit of harmony and good feel- 
ing, by carrying into eflfect as far as is proper the wishes of the 
inhabitants, should abstain from employing them in the capacity 
of teachers. If the trustees persist however, notwithstanding the 
objections on the part of the inhabitants, I see no remedy for it, 
until the annual election of district officers occurs, when others 
may be elected in their place. They may pay the teacher the 
pubhc money for his wages as far as it goes, and the residue must 



140 CASE« DECIDED BY THE 

be collected from those who send to school. No inhabitant can 
of course be compelled to send his children. 

The Clerk of school district No. 9 in the town of 
Penfield, ex parte. 

Rule of taxation in relation to real estate purchased after the formation of a 
school district applied to certain cases. 

By John A. Dix, November 25, 1833. I have received your 
letter of the 12th inst. containing certain queries, which are here- 
with subjoined, together with the answers required. 

1st, " Since the last alteration in our district lines a person 
living in another district purchased a small farm, about 40 acres, 
adjacent to our district line, having thereon a log house, in which 
no one now resides: he afterwards purchsed a small farm not far 
from the same size, adjoining said 40 acres on our side of the hne, 
which had on it a frame barn and log house, which is also with- 
out an occupant, all of which he cultivates by his ov^^n and hired 
labor, and the whole of the land being only contracted to the 
original settlers has been since conveyed to the present purchaser 
in one deed. Q,uery. Where is that part of said land which lies 
in No. 9 taxable? in number 9, (our district.) or in number 12, 
(the residence of the owner?)" 

Answer. That part of the land which lies in No. 9 is taxable 
in that district. The rule has long been established by the Su- 
perintendent of Common Schools that the lines of school districts, 
when once fixed, cannot be altered by subsequent purchases. 

2d. " The owner of a farm in another district adjoining our 
district Une purchased a farm of 100 acres in our district adjoin- 
ing his farm, then sold the buildings and about half the land, 
retaining that part adjoining his oVvn and working it as a part 
of his farm: are said lands still taxable in our district?" 

Answer. This question is also answered by the principle above 
referred to, in my answer to query No. 1, if, as stated in the 
postscript in your letter, the purchase was made after the orga- 
nization of your school district. 

3d. '-'A piece of land, say 20 acres, in our district,- adjoining 
the district line and cornering on a farm out of this district, was 
purchased and is now occupied by the owner of said farm, Uving 
in another district: where is said 20 acre piece to be taxed?" 

Answer. This land, like the lots referred to in the two pre- 
ceding queries, is taxable in your district, if, as is stated in the 
postscript of your letter with regard to this also, the purchase was 
made after the formation of the district. The object of the rule, 
which applies equally to all these cases, and which is considered 
not inconsistent with the provisions of the statute, was to prevent 



SUPERINTENDENT OF COMMON SCHOOLS. 141 

email districts from being broken up by those changes which 
are constantly occurring in the ownership of real estate. 

The Trustees of school district No. 6 in the town of 
Lincklaen, ex parte. 

A cortificate of qualification signed by two inspectors is good, if there are only 
two persons in the town authorized to act as such. 

This was a case in which two of the commissioners of com- 
mon schools of the town of Ijincklaen had removed out of town, 
and two of the inspectors were engaged in another town in keep- 
ing school, so that there were in the town but two persons who 
were authorized to inspect teachers. The question submitted 
was whether a certificate signed by them was a sufficient com- 
pliance with the law. 

By John A. Dix, December 11, 1833. A teacher's certifi- 
cate should be signed by three inspectors. But where there are 
only two individuals in the town authorized to act as such, their 
certificate as to his quahfications must, from the necessity of the 
case, be deemed sufficient, and he will be considered to all in- 
tents a qualified teacher. 

John Oakley, a Trustee of school district No. 12 in 
the town of Schroon, ex parte. 

The time and place for the annual meeting not having been fixed, it may be held 

at the usual time and place. 
Trustees may give notice of a meeting when the clerk refuses to do so, 

John Oakley was elected clerk of school district No. 12, in the 
town of Schroon, at the annual meeting for the year 1832; when 
by mistake the time and place for the next annual meeting were 
not appointed. As the usual time approached, the trustees di- 
rected Mr. Oakley to give the customary notices, which he de- 
clined to do, on the ground that a special meeting was necessary 
ill consequence of the omission of the inhabitants, at their last 
annual meeting, to designate the time and place for the next. 
The trustees then put up notices themselves for an annual meet- 
ing, and it was held at the usual time and place, and Mr. Oak- 
ley, contrary to his earnest remonstrances, was elected a trustee. 
The opinion of the Superintendent, as to the legality of the pro- 
ceedings referred to, w^as solicited. 

By John A. Dix, December 12, 1S33. If at an annual 
meeting of the inhabitants of a school district, the time and place 
for holding the next are not fixed, and if at the expiration of 
the year for which tlie district officers were elected, a meeting is 
held and an election had at the usual time and place, the Super- 



142 CASES DECIDED BY THE 

intendent has always treated the proceedings as vahd, notwith- 
standing the want of formahty in the adjournment at the previ- 
ous annual meeting. There should, however, be no surprise 
on the part of the inhabitants : otherwise he would, on applica- 
tion, set aside the proceedings and aflford the necessary relief by 
ordering a new election. Although the law does not expressly 
provide that the trustees of a school district may give notice of a 
meeting when the clerk refuses, yet I think this one of those ca- 
ses, in which they may act with propriety. The law does not, 
of course, suppose that the clerk will refuse to act, even though 
the cause should be a doubt as to the propriety of acting in a 
given case. In strictness the trustees should have given the clerk 
a written direction to issue notices for the meeting, but the law 
does not make a written order necessary, and so far as the clerk 
is concerned, he would have been justifiable in acting and giving 
a written notice upon the verbal order, which he received. Upon 
the whole, although Mr. Oakley may appeal, and if he should do 
so I shall investigate the case and decide it upon the proof, as strict 
justice may require, yet as there is no special grievance or injury, 
I think he had better acquiesce in the proceedings. He may not 
be very much benefited by the trust to which his neighbors have 
elected him, and perhaps the discharge of his duties may give him 
some small inconvenience; but these trifling sacrifices should be 
met in a spirit of accommodation; and certainly an election to an 
office which enters so much into the interests of one's neighbors, 
is a mark of confidence, however little it may be appreciated, for 
which the individual thus complimented has no right to take of- 
fence. I think Mr. Oakley had better offset the compliment to 
the grievance and let the matter rest. 

The Trustees of school district No. 7 in the town 
of Lexington, ex parte. 

A trustee of a school district cannot be clerk or collector. 

The officers of clerk and collector may be held by the same person, aUhou2;h the 

intention of the law would be better answered by conferring them on different 

individuals. 
A pei-son exempt from a tax by reason of performing military services, may vote 

at school district meetings notwithstanding such exemption, if the payment of 

the tax would have given him a right to vote. 
A distinct possession carries with it a liability to taxation. 
A school-house being abandoned, and the right of occupancy failing with it, a 

new site may be chosen by a majority of votes. 

This was an application to the Superintendent for his opinion 
as to several questions, the subject matter of which will be appa- 
rent from the answers. 

By John A. Dix, December 30, 1833. A trustee of a school 
district cannot be clerk or collector. The law does not in ex- 



SUPERINTENDENT OF COMMON SCHOOLS. 143 

press terms disqualify a trustee for holding either of those offices; 
yet it is manifest from tlie nature of the duties annexed to them 
that they must be held by different persons. The same objec- 
tion does not apply to the offices of clerk and collector, which 
may be held by the same person ;* but at the same time as the 
law has created separate offices, it is better to carry out its inten- 
tion strictly by conferring them on different individuals. 

If a person is exempted from the payment of a tax by reason 
of having performed certain military duties, he is not to be deem- 
ed disqualified thereby for the exercise of any right which the 
payment of the tax would have secured to him. He is" to be 
considered as liaving paid it in another mode, the exemption be- 
ing in fact the price of other services rendered by him. 

If a man has a farm lying in two school districts, and has se- 
veral tenants, paying him a specific rent, residing on different 
parts of it, the tenants must be taxed in the districts in which 
they reside respectively, for so much as is possessed by them. 
Whether the owner pays the tax to the town on the whole, or 
not, is of no consequence. A distinct possession carries with it a 
liability to taxation for school district purposes in the district in 
which the part separately possessed lies. It is, for all such pur- 
poses, to be deemed a distinct farm. 

If a school-house becomes unfit for vise, and is abandoned, and 
the right to the site determines with such abandonment of the 
Ijuilding, the district is to be regarded as destitute of a site, and 
a new one may be designated by a majority of votes. 

The Trustees of school district No. 4 in the town of 
Butternuts, ex parte. 

Warrants annexed to tax-lists and rate-bills, are to be executed in the same man- 
ner as warrants issued to the collectors of towns. 

Any goods and chattels lawfully in possession of a person assessed to pay a tax, 
may be taken by the collector of a school district. 

This was an application to the Superintendent for his con- 
struction of the laws referred to in his answer. 

By John A. Dix, December 30, 1833. All warrants, whe- 
ther issued for the collection of school bills or taxes are to be 
made out in the same manner as is provided by section 2, of the 
act of April 21, 1831, and by the act of April 26, 1832, they 
have the same effect. 

Property exempt from taxation under the general law is ex- 

* The supreme court in the case of Rowland vs. Luce, 16 Johnson, 135, held 
that there was no prohihition in the common school act " to confer the otKces of 
district collector and clerk on the same person," and that there was " no in- 
compatibility in the o£Bces." 



144 CASES DECIDED BY THE 

empt from taxation for common school purposes; but any goods 
or chattels lawfully in the possession of the person on whom a 
a tax is assessed, may be taken by distress and sold for non- 
payment of the tax under a warrant issued for its collection, al- 
though the person be not the owner of the goods or chattels. 
There is no distinction as to extent and effect between a warrant 
issued by the supervisors of a county to a collector of a town and 
a warrant issued by the trustees of a school district to the collec- 
tor of the district.* 

The Commissioners of Common Schools of the town 
of Fishkill, ex parte. 

In appraising the school -house and property of a district lying partly in two towns 
the commissioners of both must unite. 

The apportionment of the value of the school-house and other property of a dis- 
trict need not be filed with the town clerk in order to give validity to the pro- 
ceedings. 

This was an application for the opinion of the Superintendent 
in relation to two enquiries, the subject matter of which is ex- 
plained by his answer. 

By John A. Dix. January 2, 1833. If a joint district is di- 
vided for the formation of a new district, the commissioners of 
both towns should appraise the property ; or if a new district is 
formed from districts lying in two or more towns, a majority of 
the commissioners of all the towns must appraise the property 
of the districf-s affected by the alterations made. The act relat- 
ing to common schools, sections 67 and 68, requires that the 
value of the property shall be ast^ertained "at the time," &c. by 
the commissioners. The formation of the new district, the ap- 
praisement, &c. constitute one proceeding, and all the persons, 
to whom authority is given to peiform the acts referred to, must 
unite in them. 

It is not indispensable to the validity of the appraisement, that 
the apportionment of the value of the property should be filed with 
the town clerk. It must be handed to tlie trustees of the districts 
affected by the proceedings of the commissioners, and the latter 
ought also to make their clerk put it on record. But their omis- 
sion to do so will not render the proceeding void. 

* The principle of this decision was settled by the supreme court in the case 
of Keeler and others vs. Chichester, 1.3 Wendell, 629, pronounced in the 
year 183,5. The court held that " any property found in the possession of the 
person liable to pay the tax, rnisjht be taken and applied to the payment of such 
tax" by a town collector, and that the collector of a school district " was cloth- 
ed with the same powers as the collectors of towns in collecting town and coun- 
ty taxes," 



superintendent of common schools. 145 

(anonymous.) 

A teacher may employ necessary means of correction to maintain order; but he 
should not dismiss a scholar from school without consultation with the trustees. 

By John A. Dix, January 2, 1834. A teacher must, for 
the purpose of maintaining proper order and discipline in his 
school, have a right to employ such means of correction as he 
may deein necessary to the accomplishment of the object. For 
any unnecessary or excessive severity he wovild be answerable 
in damages in a suit at law to the person aggrieved, 

A teacher ought not, I think, to dismiss a scholar from school. 
From the nature of the common school system, teachers are, as 
a general rule, bound to receive and instruct all children sent 
rx) them. If a scholar is so refractory that he cannot be manag- 
ed, and his dismission becomes necessary to the preservation of 
<Kder, I think the teacher should lay the matter before the trus- 
tees for their direction : but not until the ordinary means of cor- 
rection had been fully tried and found unavailing. 

The Inspectors of Common Schools of the town of 
Moravia, ex parte. 

In districts lying partly in two or more towns the inspectors of either town may 
give a certificate to a teacher, and the inspectors ot any one of the other towns 
may annul it. 

In districts lying wholly in one town, three inspectors may give a certificate and 
the other three may annul it. 

This was an application for the opinion of the Superintendent 
iu a case, where the inspectors of one town had certified to the 
qualifications of a teacher in a district lying partly in that town 
and one adjoining, and the inspectors of the latter soon after- 
wards annulled the certificate. 

By John A. Dix, January 3, 1834. The certificate of the 
inspectors of one town as to the qualifications of a teacher of a 
school in a joint district is good; and the inspectors of any other 
town, of which the district forms a part, may annul it. I can- 
not, under the terms of the act relating to common schools, bring 
my mind to any other conclusion. 

In districts lying wholly in one town, three inspectors (under 
this name I include the commissioners) may give a certificate, 
and three may revoke it, or three may renew a certificate when 
it has been revoked, although they may not be the same persons 
in these several cases. 

Collisions, I am aware, may arise under this construction ot 
the law between the inspectors. But such colhsions will not be 
presumed; and if they do occur, they must be put at rest, like 

10 



146 



CASES BECIDED BY THI 



ail Other controversies arising ^nder the act relating to 0011^^)0 
schools, by an appeal to the Superintendent.* 

(anonymous.) 

An omission to record an alteration in a school district does not render the pro- 
ceeding void. 

By Jqhn a, Dix, January 13, 1834. An omission to put 
on record an alteration in the bounds of a school district does not 
affect the validity of the proceeding, but the defect may be sup- 
plied at a subsequent day by recording the order of the com- 
jjiissioners. 

(anonymous.) 

Commissroners of common schools are, to all intents, inspectors. 

By John A. Dix, January 13, 1834. Commissioners of 
common schools are, by virtue of their office, inspectors of com- 
mon schools. There is no distinction whatever between them 
and the persons elected as inspectors, so far as the visitation and 
inspection of schools and the examination of teachers are con- 
cerned. They are all inspectorsj as strictly so as if they had all 
been elected by that name ; and their rights and powers as such 
are, of course, the same. 

The Trustees of school district No. in the town 

of Sing-Sing, ex parte. 

If a district has had no clerk or record for two years, it is not for that reason dis- 

selved. 
An election need not be held in the day time. 

This was an apphcation for the opinion of the Superintendent 
as to the effect of an omission on the part of the inhabitants of rn 
district for two successive yeare to choose a clerk, in consequence 
of which neglect no records or minutes of proceedings had been 
kept. He was also desired to state whether an election of district 
officers could be held except in the day time. 

By John A. Dix, January I'd, 1834. If a district has had 
no clerk, and no minutes have been kept for two years, it is a 
gross irregularity ; but it is, nevertheless, not to be considered as 
workit^g a dissolution of the district. The true remedy is to elect 
a clerk and proceed regularly for the future. 

It is not necessary that an election of officers for a school dis- 
trict should be held in the day time. 

* See the case submitted by the inspectors of common schools of the town of 
Ballston, page 33. 



SUPERINTENDENT OF COMMON SCHOOLS. 147 

Caleb N. Potter and others, against the Commission- 
ers of Common Schools of the town of Skaneate- 
les, and the Trustees of joint school district No. 4 
in Marcellus and Skaneateles. 

An inhabitant being set off from a school district, it is an altered district, and the 
site of the school-house may be changed by a majority of votes. 

An alien cannot be an officer of a school district. 

Commissioners should not fill a vacancy in an office in a school district, unless 
the district neglects to fill it for one month after knowing that it has occurred., 

Vacancies in district offices, when the district lies in more than one town, must 
be filled by the commissioners of both towns. 

The facts connected with this appeal, are stated in the deci- 
sion of the Superintendent. 

By John A. Dix, January 31, 1834. On examination of 
the appeal of Caleb N. Potter and others, from various proceed- 
ings of the commissioners of common schools of the town of Ska- 
neateles, and of the trustees of school district No. 14 in Marcellus 
and Skaneateles, to which said appellants belong, it appears : 

1st. That the inhabitants of said district in January or Fe- 
bruary, 1833, by a majority of votes altered the site of the school- 
house. 

The legality of this proceeding, which is objected to by the ap- 
pellants as unauthorized and void under the act of 17th Februa- 
ry, 1831, depends wholly upon the fact whether the district has 
been altered since the school-house was built or purciiased, for if 
it has been, a change of the site by a majority of votes is valid, 
without the consent of the commissioners of common schools. 

It appears by the old record of the town of Marcellus in the 
•office of the town clerk of Skaneateles, that Zail Conover was 
taken from district No. 13, Skaneateles, on the 12th of March, 
1830, and annexed to district No. 14. The existence of this re- 
cord is admitted by the appellants. The persons who were trus- 
tees of district No. 14 at that time, swear that they were notified 
of the alteration and consented to the same, and the consent of 
the trustees of district No. 13 is a part of the record referred to. 
The admission on the part of the appellants taken in connexion 
with the testimony of the trustees, is conclusive against the ap- 
pellants on the first point. It is alleged, it is true, that the order 
making the alteration does not appear in the office of the town 
clerk of Marcellus; but the old record of the town shows that it 
was recorded at the proper time; and if the record was transfer- 
red to the town of Skaneateles, it was not necessary that the or- 
der should be recorded in Marcellus after its organization as a 
new town. The fact that it was recorded in the old town, a fact 
admitted by the appellants, is sufficient evidence of its having 
be^n regularly made by the commissioners of common schools. 



148 CASES DECIDED BY THE 

The right of the commissioners of common schools of Marcellus 
to make the alteration, was perfect. The act of February 26, 
1830, organizing the town of Skaneateles, provided that the first 
town meeting in the town of Marcellus, after its division, should 
be held on the last Tuesday of April, 1830, and that the first 
town meeting in the town of Skaneateles should be held on the 
same day. 

The Revised Statutes, vol. 1, page 157, sec. 12, provide that 
every law, unless a different time shall be designated therein, 
shall commence and take effect on the twentieth day after its 
passage. The act of the 26th February, 1830, referred to, is 
silent as to the time when it was to go into operation, and it 
would, therefore, take effect on the 18th of March. For some 
purposes Skaneateles would be considered a separate town on 
that day: but it may be fairly contended that the local authori- 
ties of the town of Marcellus might exercise jurisdiction over both 
towns until new officers were chosen for both. Otherwise it is 
manifest that no competent authority would exist in the former 
town during the period intervening the time at which the law 
erecting it went into effect, and the day appointed for the town 
meeting, to provide for the execution of the laws. But even if 
the authority of the commissioners of Marcellus over the com- 
mon schools in Skaneateles ceased on the day the act erecting 
the latter look effect, they were competent to act until the 18th, 
and, therefore, the alteration referred to on the 12th was vahd 
and went into operation immediately, the trustees of the districts 
having given their consent. 

A legal alteration in the boundaries of district No. 14 having 
thus been made after the school-house was built, the provisions • 
of the act of February 17, 1831, are inapplicable to the case. 

2d. It is objected by the appellants, that Merick Bradley and 
Henry EUery, two of the trustees of said district, (Benjamin Nye, 
the third trustee, dissenting,) sold the school-house on the ninth 
November last, pursuant to a vote of the inhabitants on the 7th 
of October. 

No testimony is produced to show that the proceedings of the 
meeting at which the vote to sell the school-house was taken, 
were irregular or void, and it is clearly shown that public notice 
of the sale was given, though such notice is not required by 
law. 

It is objected, however, that Ellery, being an ahen, was inca- 
pable of holding office, that his acts were void, and as a ne- 
cessary consequence that the sale by Bradley against the con- 
sent of Nye, was not valid. Whether Ellery was incapable of 
holding office or not, is of no consequence so far as the validity 
of his acts is concerned. It is sufficient that he was elected a 



SUPERINTENDENT OF COMMON SCHOOLS. 149 

trustee at a regular meeting of the district. He was an officer 
de facto, and his acts, so far as the public and third persons 
having an interest in them are concerned, were good, until his 
incapacity to hold office was determined, and a new election or- 
dered by some competent authority. The sale of the school- 
house by Bradley and Ellery, in pursuance of the vote of the 
meeting was, therefore, valid. 

With regard to the eligibility of Ellery to hold the office of trus- 
tee, the Superintendent concurs with the commissiofjers in the 
opinion expressed by them^ although the question is not without 
difficulty. It is provided by the Revised Statutes, vol. 1, p. 721, 
sec. 20, that " every alien who shall hold any real estate, by virtue 
of any of the foregoing provisions, shall be subject to duties, assess- 
ments,^ taxes and burthens as if he were a citizen of this state ; 
but shall be incapable of voting at any election, or of being elect- 
ed or appointed to any office, or of serving on any jury." The 
provisions of this section relate to aliens, who, under certain cir- 
cumstances, are authorized to hold real estate, and they have in 
several instances been construed with very considerable limitation 
of their terms. Although the persons embraced by it are " sub- 
ject to duties, assessments, taxes and burthens" as if they were 
citizens of this state, it has been decided by the proper military 
authority, that they cannot be lawfully enrolled in the militia, 
because the law prescribing the organization of the militia does 
not include them in the class designated as subject to rrMhtary 
duty. Military service is a " duty" as well as a " burthen ;" yet 
tlie general provisions of the section above quoted have been so 
construed as not to conflict with the special provisions of law re- 
gulating the enrolment and organization of the militia. In like 
manner it has been decided by the Superintendent, that aliens 
may vote for school district officers, notwithstanding the gene- 
ral terms of the section above quoted, because the chapter re- 
lating to common schools prescribes the qualifications of voters, 
and does not in terms exclude aliens; and because it was con- 
ceived that the statute, in referring generally to elections, must 
be construed to intend such as are provided for in the case of 
slate, county or town officers, and not to include jurisdictions 
merely local and organized for special purposes. If the chapter re- 
lating to common schools had expressly declared what the quali- 
fications of the officers of school districts should be, the question 
might arise whether the same rule of construction should not be 
adopted with regard to the general provision in the section above 
quoted, as to the capacity of the persons referred to in it, to hold 
office by limiting it to such " public or civil offices" as are pro- 
vided by the Revised Statutes. But as the chapter relating to 
common schools is wholly silent with regard to the qualifications 



150 CASES DECIDED BY THE 

of school district officers, it would be assuming too broad a con- 
struction to reject, as inapplicable to tbis case, a provision so com- 
prehensive in its terms as necessarily to include all offices which 
are in any manner recognized by law as connected with the ad- 
ministration of the municipal or local concerns of the citizens of 
the state. 

Independently of the limitations above referred to, it is also to 
be considered that the section in question applies only to those 
aliens " who shall hold any real estate by virtue of" certain pro- 
visions therein 'referred to, and was obviously designed to pre- 
clude the inference that the class of aliens to which it applied 
should, as a consequence of the duties and burdens of citizenship 
which it imposed, he entitled to the exercise of any rights not spe- 
cially conferred on them. If the exclusion of aliens from the en- 
joyment of the rights of citizenship denied by this section depended 
upon this provision alone, it is not perceived why all other aliens 
excepting the class referred to might not exercise such rights, un- 
less they were specially withheld by other provisions. The inca- 
pacity of aliens, excepting the class embraced in the section 
above quoted, to vote, hold offices or serve as jurors, must be 
found in other provisions of law; and indeed it may be shown 
that the incapacity of the class referred to, so far as voting or 
holding office is concerned, would have been the same if the lat- 
ter part of the section had been wholly omitted. Their incapa- 
city to vote at elections of public officers is provided for by sec- 
tion first, title first, chap, sixth, and section first, title second, 
chap, eleventh, of the first part of the Revised Statutes. Their 
incapacity to hold office is provided for by section first, title sixth, 
chap, fifth, and section eleventh, title third, chap, eleventh, oif 
part first of the Revised Statutes. It is also a principle of com- 
mon law that aliens shall be incapable of holding office or of serv- 
ing on juries; and if, as before observed, their capacity or incapa- 
city depended upon the section above quoted, they might be deem- 
ed capable both of holding office and serving on juries, unless they 
were of the particular class to which that section refers. The 
disqualification, therefore, contained in that section must be con- 
strued to intend merely that the particular class referred to shall 
not, as a consequence of the duties of citizenship imposed on 
them, be deemed to have acquired any of the rights denied to 
them by that section. The necessity of such a disquahfication, 
so far as serving on juries is concerned, is manifest, since such 
service is as much " a duty and a burthen" as a right; and 
might have been exacted under the first part of the section but 
for the special disqualification provided for by the latter part, or 
unless, upon the general maxims of law, it was wholly inadmfe- 



SUPERINTENDENT OF COMMON SCHOOLS. 151 

It is therefore conceived that the broad question whether 
ahenism is a disquahfication for voting at elections, holding of- 
fice or serving on juries, is not determined by the section under 
consideration, the provisions of that section being applicable only 
to a special class of cases ; but that it must be answered by a re- 
sort to other provisions of law of greater scope. For the present 
purpose it is only necessary to consider the capacity of aliens to 
hold office. It is a well established principle of the common 
law, confirmed by many statutory provisions, that an alien is 
incapable of holding an office. This principle was a part of the 
*x)nunon law at the time the colonial dependence of this state 
upon Great Britain was thrown off", and it has not been rescinded 
l)y any constitutional or legislative provisions since that period: 
although many acts have been passed in confirmation of it in spe- 
cial cases. It may, perhaps, be questioned whether school district 
offices are of such public concern as to come within the principle 
of exclusion referred to; and the Superintendent has not with- 
out difficulty come to the conclusion that they are properly em- 
braced by it. But although they may not be of the class of 
public or civil offices for which the statute intends to provide; yet 
as the disqualification of aliens at common law is without limita- 
tion, and as the qualifications of officers of school districts are not 
prescribed by statute, it is deemed most consistent with the rules 
of construction to consider the disqualification referred to as ex- 
tending to every office which has a connexion, however remote, 
with the municipal or local concerns of the citizens; and such a 
connexion may be found in the duty confided to the trustees of 
school districts, in receiving and applying to the specified objects 
the revenues of the school fund. 

On these grounds, therefore, the Superintendent concurs with 
the commissioners in the opinion given by them with regard to 
the ineligibility of Ellery to the office of trustee. 

It appears by the affidavit of two of the trustees of district 
xNo. 14, that application was made, by the said Ellery and 
other inhabitants of the district, to the commissioners of common 
schools of Skaneateles to give their opinion thereon, (his capacity 
to serve,) and to appoint a new trustee in case it was necessary 
or ^proper ; and that the commissioners decided that the said 
Ellery was incompetent, and that the office of trustee which he 
filled had in fact been vacant from the time of the annual meet- 
ing at which he was elected ; and thereupon the said commis- 
eioners proceeded to fill the vacancy. 

If the commissioners had a right to declare the office vacant, 
it is the opinion of the Superintendent that they should have 
waited one month after announcing their decision, lor the inha- 
bitants of the district to supply the vacancy. The intention of 



152 



CASES DECIDEB BY TKE. 



the 71st section of the act relating to common schools is to con- 
fer on the commissioners the power of filling vacancies by ap- 
pointment, where the inhabitants of the district have neglected 
to avail themselves of the light to fill them by election. The 
construction given to this section by the Superintendent renders 
the course above indicated the proper one to be pursued in all 
cases where vacancies exist. Ellery was elected without any 
suspicion, so far as is shown, that he was incapable of holding 
office ; and it is manifest from the application subsequently made 
to the commissioners of Skaneateles for their opinion, that his 
incapacity was a matter of doubt among the inhabitants of the 
district. The spirit of the provisions of the section above refer- 
red to certainly requires that a district should have one month 
to fill a vacancy after knowing that it has occurred. 

But in undertaking to make the appointment at all, the com- 
missioners of Skaneateles exceeded their poweis. The manifest 
intention of the title of the Revised Statutes relating to common 
schools is, that in all matters affecting a district lying partly in 
two or more adjoining towns, the commissioners of common 
schools of all the towns, or the major part of them, shall con- 
cur. The 71st section of the title referred to, it is true, does not 
in express terms require the concurrence of such commissioners 
in filling a vacancy under the particular circumstances specified 
therein, for it does not take notice of joint districts at all ; and 
yet by giving the right of filling vacancies, under certain restric- 
tions, to the "commissioners of the town" in which the district 
lies, the inference is a reasonable one that in the case of a joint 
district the commissioners of all the towns concerned should have 
a voice in the proceeding. A different construction would be at 
variance with the whole policy of the law in relation to such 
districts ; and whenever a doubt arises as to the intention of the 
law in a case not specially provided for, the general provision in 
which it is embraced must be so construed as to consist with the 
tenor of other provisions affecting the exercise of the same class 
of powers. The Superintendent is therefore decidedly of the 
opinion that the jurisdiction of the commissioners of the two 
towns was a concurrent and not a separate jurisdiction, and that 
the act of the commissioners of Skaneateles in the case referred 
to was null and void. The fact that Ellery resided in the town 
of Skaneateles does not affect the principle. 

It is due to the commissioners of Skaneateles to add, that the 
Superintendent can discover nothing in the testimony presented 
})y the appellants to justify the imputation of any design on their 
part to assume a power not expressly given to them. The case 
was one in which they might not unreasonably consider them- 
sf^Ives authorized to interpose. Nor was the provision of law un- 



SUPERINTENDENT OP COMMON SCHOOLS. 153 

tier which they acted m appointing Wyckoff, altogether clear in 
its terms; its true meaning was to be settled by construction, and 
the error on their part consisted in construing it in a manner not 
consistent with other provisions relating to the exercise of the 
same class of powers. 

3d. It is a matter of complaint on the part of the appellants 
that the trustees of district No. 14 have refused to call a special 
meeting of the inhabitants for the purpose of consulting with 
regard to the selection of a new site and the erection of a new 
school-house. As this grievance will be remedied by the deci- 
sion of the Superintendent on other points, it is only necessary 
to remark that it is the duty of the trustees to call a special 
meeting in all cases whenever it is requested by a reasonable 
number of the inhabitants ; and if such request is refused, the 
Superintendent will on application to him direct a meeting to be 
held. 

It is hereby ordered that the sale of the school-house by the 
trustees of said school district No. 14 be confirmed. And it is 
declared, that the appointment of Jonathan Wyckoff as trustee 
of said school district by the commissioners of common schools 
of the town of Skaneateles, on the 19th day of November last, 
is null and void. And it is further ordered, that the trustees of 
said school district proceed to call a special meeting of the tax- 
able inhabitants for the purpose of filling the vacancy occasioned 
by the incapacity of Ellery to hold office, and for transacting 
such other business as the said inhabitants shall, when so assem- 
bled, deem necessary and proper. 

The Trustees of school district No. 2 in the town of 
Bethel, ex parte. 

Ua school has not, in consequence of any overruling necessity, been kept tliree 
months by a qualified teacher, the district will be allowed a share of the pub- 
lic money on application to the Superintendent. 

In district No. 2 in the town of Bethel the school-house was 
accidentally destroyed by fire. A tax was immediately voted to 
Iniild a new one, and a contract made to have it completed in 
tune for the fall term; but in consequence of the failure of the 
contractor to fulfil his engagement, a school was only kept in the 
district two months and twenty-two days by a qualified teacher. 

By John A. Dix, February 7, 1834. Where it has been 
injpossible, in consequence of any overruling necessity, to have 
a. school taught in a district the prescribed period of three months 
by a qualified teacher, the Superintendent has directed that the 
public money should, notwithstanding, be paid to the district as 
tliough there had been a strict compliance with the provisions of 



154 CASES DECIDED BY THE 

the law.* The destruction of a school-house by fire may not be 
precisely such a case, because a room might possibly have been 
hired, and a school kept the prescribed period. But as the defi- 
ciency is for a very few days, I should be disposed, on a formal 
representation of the facts, to direct the commissioners of common 
schools to allow tlie district public money next spring, unless 
there appears to have been neghgence on the part of the district 
or its otficers. 

The Trustees of school district No. 4 in the town of 
Maryland, ex parte. 

The assessment roll kept by the town clerk is the one to be followed in assessing 

taxes. 

In December, 1833. the trustees of school district No. 4 in the 
town of Maryland, called on the assessors and procured a copy 
of their last assessment roll for the purpose of assessing a tax 
to build a school house. On this copy they found the name of 
one Pitts, a resident of said distiict No. 4, whose property was 
assessed at f 600, and he was included in the tax list. Soon al- 
terwards it was discovered, by referring to the original roll in the 
town clerk's office, that Pitts had been accidentally omitted ; and 
the question presented to the Superintendent was, whether he 
was properly included in the tax list made out as aforesaid by 
the trustees. 

By John A. Dix, February 17, 1834. The last assess- 
ment roll of the town, which is to be consulted when taxes are 
to be assessed for school district purposes, is the one required by 
law to be kept by the town clerk for the use of the town. If 
this roll is departed from in assessing a tax upon the inhabitants 
of a school district, notice must be given, as directed in section 
80, page 483, 1. R. S. Mr. Pitts, if a resident of the district 
and holding property, is clearly liable to taxation, whether he is 
on the "last assessment roll of the town" or not ; but if he was 
miiitted on that roll, the value of his property must be ascertain- 
ed by the trustees in the manner specified in the section above 
referred to. I think the warrant ought not to be executed ac- 
cording to the present tax list, the assessment on Mr. Pitts not 
having been made in the manner prescribed by the statute, un- 
less on a more careful examination of the roll in the town clerk's 
office his name appears on it. But unless Mr. Pitts waives oi>- 
jections, and consents to pay the amount assessed on him, (which 
he may as well do, as he must pay at last,) you will be empow- 

• See the case of the trvistees of school district No. 4 in the town of Somerset, 
page 34. 



SUPERINTENDENT OF COMMON SCHOOLS. 155 

ered to make out, the assessment anew on application to the Su- 
perintendent, witli notice to him, (Mr. P.) In doing so, you 
will ascertain the value of his property from the best evidence in 
your power, giving notice as required by sec. SO. The lapse of 
time will work no prejudice to you, as the decisions of the Su- 
perintendent are final, and under the authority given by the sta- 
tute he has always exercised a discretion in allowing errors of 
proceeding to be corrected with a view to accomphsh the ends of 
justice. 

The Trustees of school district No. 1 in the town of 
Redhook, ex parte. 

A tenant is taxable, whether a householder or not, for land occupied and im- 
proved by him. 

The following question was submitted to the Superintendent 
by the trus:ees of district No. 1 in the town of Redhook. 

Is a man that resides in a district taxable for a non-resident 
piece of land leased and improved by him in the same district, 
he at the same time, not being a householder, but working with 
his father and others as it appears? 

By John A. Djx, March 3, 1834. If a man is in the ac- 
tual occupation of a lot, belonging to a non-resident, as tenant 
of the latter, he is taxable for it. His liability to taxation does 
not depend upon his being a householder. He may board out, 
and yet if he hires the lot, and improves it as tenant of the non- 
resident owner, he is taxable for it. 

The Trustees of school district No. 2 in the town of 
Kingsbury, ex parte. 

The annual report of school districts should be made out by the 1st of March. 
If trustees neglect, without good cause, to make their annual report before the 
apportionment of the school moneys, they are without remedy. 

This was an application to the Superintendent to allow school 
district No. 2 in the town of Kingsbury, out of the school mo- 
neys to be distributed in the year 1834, the amount of its share 
for the year 1833, which was lost by the neglect of the trustees 
to hand in their annual report before the first Tuesday of April, 
the day the apportionment was made by the commissioners. 

By John A. Dix, March 3, 1834. The 9ist section of the 
act relating to common schools requires the trustees of school 
districts, on or before the 1st day of March in every year, to 
make their annual reports to the commissioners of common 
schools. The commissioners, if they do not receive all the re- 
ports, are in duty bound to wait until the first Tuesday of April 



WGr CASES DECIDED BY THE 

before they apportion the public moneys ; but it is not the less 
imperative on the trustees to make their reports by the 1st of 
March, The 23rd section provides that "In making- the appor- 
tionment of moneys among the several school districts, no share 
shall be allotted to any district, part of a district, or separate 
neighborhood, from which no sufficient annual report shall have 
been received, for the year ending on the last day of December, 
immediately preceding the apportionment." You do not say on 
what day your report was handed to the commissioners or on 
what day they made the apportionment. If they received it be- 
fore the 1st Tuesday of April, it was in time, and thej'^ were wrong 
in excluding your district from the apportionment. But if they 
apportioned the public money on the first Tuesday of April, and 
your report was not handed in until the next day, you are with- 
out remedy, unless you were prevented by some cause which 
you could not control. If your report was handed in before 
the 1st Tuesday of April, or if from any accident it was not 
handed in until after that day, I will, when you shall have ve- 
rified the fact by affidavit, direct the commissioners to supply 
the deficiency out of the public moneys to be distributed next 
April, 

The Trustees of school district No. 14 in the town 
of Catlin, ex parte. 

Fuel provided for school districts must not be used for meetings' held in the 
school-house. 

This was an application for the direction of the Superinten- 
dent in a case where temperance and other meetings had, by 
general consent, been held in the district school-house during the 
winter ; the fuel provided for the school having, on such occa- 
sions, been used for the purpose of warming the house. 

By John A. Dix, March 6, 1834. It is extremely impro- 
per to allow the fuel which is provided and paid for by the inha- 
bitants of school districts for common school purposes, to be used 
for any other purpose whatever. If the use of the school-house is 
solicited for the accommodation of temperance or other meetings, 
and if it is by general consent so used, the persons to whom the 
favor is extended must see that the district is not charged with the 
expense of warming or lighting the house. The custody of the 
school-house is committed by the statute to the trustees, and it 
is their duty to see that the interests of the district are protected. 
If they allow the fuel provided for the use of the "fechool to be 
consumed for other purposes, they will be personally responsible 
for it. Whether the fuel is paid for by a tax, or whether it is 
provided by those who send their children to school, is of no 



SUPERINTENDENT OF COMMON SCHOOLS. 157 

consequence. The principle is the same in both cases. But in 
the latter the individnal grievance is undoubtedly greater, and 
the trustees must see that it is redressed. Those who have used 
the school-house should be required to pay for or replace the 
wood they have consumed, before they are allowed to use it 
again. 

The Trustees of school district No. 8 in the town of 
Rensselaerville, ex jjarte. 

Executors are to be taxed where they reside for the personal property in their 
possession or under their control. 

D. C, an inhabitant of school district No. 8 in the town of 
Rensselaerville, died in June, 1833, leaving a large personal 
property. There were four executors under the will, one resid- 
ing in the city of New-York, one in Albany, and two in the 
district, having severally personal property belonging to the es- 
tate in their hands. The question submitted was in what man- 
ner they should be assessed for a tax voted to build a school- 
house. 

By John A. Dix, March 6, 1834. The two persons refer- 
red to in your letter as residing in your district, are to be jointly 
assessed as executors for all the personal estate which they pos- 
sess or control in their representative character. Their names 
must be entered, on the tax list as follows : 

A B ? 

p' |-v' [ Executors of, &c. 

The tax must be upon the whole amount of property in the 
possession or under the control of the executors residing in the 
district. If there were assets in the hands of one of the non- 
resident executors, those assets could not be taxed in your dis- 
trict. The number of executors has nothing to do with the rule 
of taxation. Only so much of the personal estate as is in the 
possession or under the control of the resident executors is to be 
taxed. It is true that in contemplation of law the property re- 
ferred to may be equally under the control of all the executors; 
but for the purposes of taxation, the construction which I have 
given to it is indispensable to give effect to the provisions of sec- 
tion 5, page 389, 1 R. S. Your attention is called to section 
10, page 391, same volume. The debts referred to in this sec- 
tion are such as are specified in sec. 27, page 87, 2 R. S. It is 
in the power of the executors to claim a reduction, under the 
provisions of sec. 79, page 482, 1 R. S.; and under sec. 16, 
page 392, same vol. they may reduce the amount by a specifi- 
cation of the value of the property. 



158 



CASES DECIDED BY THE 



The Trustees of school district No. in the town 

of Greenfield, ex parte. 

Two taxes voted at the same time may be included in the same tas list. 

In school district No. in the town of Greenfield, a tax 

was voted to purchase fuel, and at the same time another tax 
was directed to be levied to repair the school-house. The trus- 
tees proceeded to make out the tax hst, including in it both 
sums. The question presented was whether the proceeding was 
legal. 

By John A. Dix, March 7, 1834. There is no objection to 
mcluding in one tax list two or more sums voted at the same time 
to be raised by a tax on a school district for different objects. It 
IS merely necessary that the trustees, when the whole amount is 
collected, appropriate the several sums to the purposes for which 
they are authorized to be raised. 

The Trustees of school district No. 8 in the town of 
Little-Falls, ex parte. 

If an individual acquires or parts with property after the last assessment roll of 
the town is made out, the roll must not be followed in making out a tax list. 

In school district No. 8 in the town of Little-Falls, an indivi- 
dual sold the farm, for which he was assessed in the last assess- 
ment roll of the town, after the roll was made out, but still re- 
mained in the district, and made other investments. The ques- 
tion presented was whether the last assessment roll was to be 
followed in such a case. 

By John A. Dix, March 7, 1834. When a resident in a 
school district acquires additional property, or parts with property 
after the town assessment roll is completed, it is such a case as ^ 
contemplated by the words '^ where the valuation of taxable pro- 
perty cannot be ascertained from the last assessment roll of the 
town," in sec. 80, page 483, 1 R. S. unless it is a simple pur- 
chase or sale of a farm or lot, the value of which is separately 
fixed and shown by the assessment roll. If the trustees depart 
from the last assessment roll of the town, for the reason above 
assigned, they must give notice and proceed in the manner pre- 
scribed in that section. 



&UPERINTENDEt*T OF COMMON SCHOOLS. 159 

John Haywood and William Haywood, against the 
Trustees of school district No. 6 in the town of 
Gates. 

To subject the unimproved part of a lot belonging to a non-resident to taxation, 
the improved part must be occupied by an agent or servant. 

The facts of this case are fully given in the Superintendent's 
order. 

By JoiTN A. Dix, March 3, 1834. On the fifth day of No- 
vember last, a tax was laid by the inhabitants of school district 
No. 6 in the town of Gates, to build a new school-house, and 
on the third of December following the tax list was made out by 
the trustees. John Haywood and William Haywood were taxed 
twenty-three dollars and between sixty and seventy cents, on ac- 
coimt of two lots, which are partly cultivated and partly unim- 
proved. The Messrs. Haywoods arc both non-residents of the 
district, and appeal from the assessment made upon them, 

It appears by the affidavit of John Haywood, that the first lot 
consists of about thirty-three or four acres, about one half of which 
is improved by the owners; that a man by the name of Mans- 
field occupies a small log house and a small patch as a garden, 
that he occupies the same at sufferance, has paid no rent, is not 
charged with any rent, that he is in no respect an agent for the 
said owners, and that he has never been employed by the own- 
ers in any way.. These facts are not denied by the trustees of 
the district in their answer to the appeal of said Haywoods from 
the assessment made upon them. 

The second lot contains about ninety acres, about twenty- 
five of which were cultivated in October or November last, when 
said Haywoods purchased it of one Charles Green, and took 
from him a deed of conveyance of the same. At the time of the 
purchase it was agreed between the parties verbally that Green 
might remain on the lot and occupy it till April next. John 
Haywood swears that Green was in no respect an agent or te- 
nant of the owners, except as before stated, and that he left the 
lot in January, since which time no other person has occupied or 
resided on the lot. These facts are not denied by the trustees. 

The Superindendent is of opinion that there is in neither of 
these cases such an occupancy as to subject the non-resident own- 
ers to taxation on the whole of either lot. The law provides ex- 
pressly that no more than the cleared and cultivated part of a 
lot shall be taxed to a non-resident owner, unless he improves it 
by an agent or servant; and it would be a total departure from 
the spirit of its provisions to tax the unimproved part of a lot on 
the ground of a temporary occupancy of the improved part by 
the sufferance of the owner, without any benefit on his part, by 



160 CASES DECIDED BY THE 

reason of sach occupancy, the occupant neither paying him reot 
nor being in any way employed in his service. So far as the 
second lot is concerned no reason is perceived why it may not 
have been assessed to Green, the vendor, who remained in pos- 
session. 

Two of the trustees swear that the Haywoods were informed 
of the amount of their tax and promised to pay it. It does not 
appear, however, that they were aware that they had been tax- 
ed for the whole of the lots ; nor can such a notice or assent de- 
prive them of the right to appeal in the manner designated by 
law, and resist an assessment which is wholly without authority. 

The trustees object to the appeal that the}'^ had only six days' 
notice of its presentation, instead of ten as required by regula- 
tion. But they have, by answering, waived the objection, and 
rendered it unnecessary for the Superintendent to allow the ap- 
pellants to amend their notice. 

It is therefore ordered, that the trustees of school district No. 6 
aforesaid, amend their assessment so as to include only the value 
of such parts of the lots in question as are cleared and cultivated; 
and that their tax list be made out and the tax collected in con- 
formity thereto. 

The Trustees of school district No. 2 in the town of 
Rhinebeck, ex parte. 

A sloop must be taxed where the owner resides. 

Messrs. Schryver & Bergh owned a landing and a sloop in 
district No. 2 in the town of Rhinebeck, and carried on the bu- 
siness of freighting. In the last assessment roll of the town the 
property was assessed to WiUiamson <fc Bergh, Schryver being 
a non-resident of the district, and Williamson being in the occu- 
pation of the landing as lessee. Bergh, the other partner, was 
a resident of the district. A tax was soon afterwards voted to 
build a school-house, and in the mean time Williamson's inte- 
rest in the concern ceased and he left the district. The question 
presented to the Superintendent was in what manner the pro- 
perty should be assessed. 

By John A. Dix, March 17, 1834. Taxes for school dis- 
trict purposes are to be assessed upon the taxable inhabitants re- 
siding in the district at the time the tax hst is made out. Non- 
residents can be taxed only for real estate in the district in which 
such real estate lies. The owner of the dock, whether a resi- 
dent or not, may be taxed for it, unless it is in the occupation of 
a resident lessee or tenant, in which case the latter would !>e 
taxable for it if the owner is a non-resident. But the owner of 



SUPERINTENDENT OF COMMON SCHOOLS. 161 

the vessel must be taxed for it in the district in which he resides. 
If Mr, Bergh resides in your district the firm may be taxed for 
the sloop, and the tax collected from the resident partner. If 
you cannot, as I suppose, follow the assessment roll of the town 
in this case, you must give the notice required by sec. 80 of the 
act relating to common schools. 

The Trustees of school district No. 30 in the town 
of Johnstown, against the inhabitants of said dis- 
trict. 

J}' trustees are directed by a vote of the district to make such repairs as they may 
think proper on the school-house, and the district afterwards refuses to lay a 
tax for the purpose, the Superintendent will order an amount sufficient to 
cover the reasonable expenditures of the trustees to be raised. 

The facts connected with this appeal are stated in the order 
of the Superintendent. 

By John A. Dix, March 17, 1834. On the 20th of April, 
1833, at an annual meeting of the taxable inhabitants of school 
district No. 30 in the town of Johnstown, it was resolved that 
'• the trustees should make what repairs they thought proper and 
necessary on the school-house some time before the winter school 
commenced." In thus giving to the trustees an unlimited dis- 
cretion over the repairs to be made in the school-house, the in- 
habitarits virtually pledged themselves to raise by a voluntary 
imposition upon their property such a sum as should be neces- 
sary to defray all expenditures made in good faith by the trus- 
tees in executing their directions. In pursuance of the authority 
given to the trustees they entered into a contract with William 
Lewis to make certain repairs therein specified, and stipulated to 
pay him the sum of thirty dollars for his work. 

On the 7th January last, at a special meeting of the inhabi- 
tants of said district it was resolved to allow the trustees twen- 
ty-five dollars for the carpenter's work done to the school-house. 
It was also resolved to allow them ten dollars and twenty-two 
cents for a stove and pipe, and two dollars and fifty cents for 
building a chimney. From these sums, amounting to thirty-se- 
ven dollars and seventy-two cents, was to be deducted the sum of 
two dollars and thirty-two cents, the amount for which the brick 
and iron of the old chimney sold, leaving a balance of thirty-five 
dollars and forty cents to be collected by the trustees for the pur- 
pose of defraying the expenses incurred in pursuance of the vote 
of the inhabitants on the 20th of April. From these proceed- 
ings the trustees appeal to the Superintendent of Common 
Schools, on the ground that the expenditures having been made 
in good faith, and they being personally responsible to Lewis for 

11 



162 CASES DECIDED BY THE 

the amount contracted to be paid to him, the district ought to have 
voted a tax equal to the amount of the pecuniary habihty incur- 
red by them in carrying into effect the directions of the inhabi- 
tants; and they pray that an order may be granted directing 
thirty instead of twenty-five dollars to be levied on the district to 
satisfy Lev^^is' claim. 

The Superintendent is of opinion that the inhabitants are 
bound to exonerate the trustees from the responsibility which 
they have incurred, and nothing but an abuse on the part of the 
latter of the authority conferred on them could justify a refusal 
to raise the amount stipulated to be paid to the person by whom 
the work has been performed. The discretion imparted to the 
trustees was unhmited, and it is too late for the inhabitants when 
the trust has been executed, to undertake to limit the amount 
for which they are answerable, unless abuse can be shown. The 
trustees, in executing the contract with Lewis, acted as their 
agent ; and if Lewis should prosecute and recover the amount 
contracted to be paid to him, it would be the duty of the trustees 
to pay the amount so recovered out of any moneys belonging to 
the district in their hands. To avoid such an alternative, and 
to release the trustees from the responsibilit}^ which they have in- 
(Mirred, the Superintendent deems it proper that the whole amount 
necessary to satisfy the demand of Lewis should be levied upon 
the district. The district has had notice of the application by 
service of a copy of the papers on which it is founded, on the 
clerk, and no objection to the relief prayed for has been made. 

It is, therefore, ordered that the trustees of said school district 
No. 30, proceed to make out the tax list so as to levy on the 
taxable inhabitants the sum of forty dollars and forty cents, in- 
stead of thirt3r-five doUare and forty cents, as directed by the 
vote of the district on the 7th of Januar}^ last. 

(anonymous.) 

If a child attends school half a day, it is to be reckoned as half a day. 

By John A. Dix, March IS, 1S34. If a child attends school 
part of a day only, it is to be reckoned as Iialf of a day. Noth- 
ing less than half a day can properly be recognized by a teacher 
in making out his school list. 

Joseph Budd and others, against the inhabitants of 
school district No. 5 in the town of Murray. 

Public money t^hould be fairly divided between the summer and winter terms. 

In school district No. 5 in the town of Murray, at the annual 
meeting in October, 1833; it was voted that two-thirds of the 



SUPERINTENDENT OF COMMON SCHOOLS. 163 

public money to be received in the spring of 1834. should be ap- 
plied to the winter school, and one-third to the summer school. 
On the 25th November, 1833, Daniel "VVellman was employed 
as teacher, and continued till about the last of December, when 
he was dismissed, and another teacher was employed early in 
January, who continued to teach until spring. Mr. Wellman 
was inspected and received a certificate of quahfication before he 
commenced, but the certificate was annulled in about two weeks 
afterwards by the inspectors. Soon after the second teacher 
commenced his school, a number of the inhabitants of the dis- 
trict withdrew their children and sejit them to a select school. 
In February, 1S34, the vote passed at the annual meeting in 
October preceding, in relation to the public money, was annulled, 
and the whole voted to be apphed to the winter term. From 
these proceedings an appeal was brought. 

By John A. Dix, March2L 1834^ On examination of the 
appeal of certain inhabitants of school district No. 5, Murray, Or- 
leans county, from the proceedings of two special meetings, held 
on the 3d and 10th of Februarj^last, it appears that at the an- 
imal meeting of the inhabitants of said district, on the 26th of 
October last, it was resolved unanimously, that two-thirds of the 
public money for the year 1834. be applied to tlie winter school, 
and the remaining third to the summer school. It also appears 
that a meeting of the inhabitants of said district was called on 
the third of February last, '• for the pui-pose of regulating the 
district school," and that said meeting was adjourned to the tenth 
of the same month, at which time it was resolved that the vote 
of the 26lh October, with regard to the application of the pubhc 
money, should be repealed, and that all the public money should 
be apphed to the winter school, commencing 9th January, 1834. 

To these proceedings exception is taken upon several grounds, 
which, for the purposes of this decision, it is unnecessary to spe- 
cify. 

The principal and the only substantial objection to the pro- 
ceedings of the meeting on ihe 3d February, is, that the notice 
did not set forth in specific terms the object in view. In a mat- 
ter so important as that of annulUng a previous vole of the in- 
habitants in relation to the public money, it is due to all con- 
cerned that ample notice should be given of the intended pro- 
ceeding. This was not done in the case under consideration. 
The notice set forth merely that the object of the meeting was to 
regulate the district school : and it is manifest that without some 
other intimation, an intention of making a new appropriation of 
the public money would not readily have been inferred from the 
terms of the notice. The same objection applies to the adjoun> 



164 CASES DECIDED BY THE 

ed meeting on the 10th February, of which no notice was given, 
as the adjourniYient was for less time than one month. 

So far as the inhabitants resolved to apply none of the public 
money to be received this year to the payment of teachers' wa- 
ges for services rendered previous to the first of January last, they 
acted in conformity to the requirements of the law. The money 
apportioned in 1834, must be applied during the year, and Mr. 
Wellman, who taught school in November and December, 1833,, 
cannot, under the provisions of the law, receive any portion of it> 

It is undoubtedly most proper that a fair division of the public 
money should be made between the winter and summer terms. 
as the children of indigent persons are often, for the want of com- 
fortable clothing, unable to attend the winter school. But in this 
case a large number of children residing in the district have been 
withdrawn from the school, the maintenance of which falls upon 
comparatively few persons, and the Superintendent deems it no 
more than just to direct, as a fair support has not been given to 
the school, that two-thirds of the public money received in 1834, 
shall be applied to the winter term commencing on the 9th 
January last, and to submit to the inhabitants of the district 
Avhether the remaining third shall be applied to the winter or 
summer term. 

It is accordingly ordered, that the proceedings of the meetings 
of the 3d and 10th February, be set aside ; that two-thirds of the 
public money, which the trustees of said district No. 5 may re- 
ceive during the present year, shall be applied to the term com- 
mencing on the 9th January last ; and that the trustees proceed 
forthwith to call a special meeting of the taxable inhabitants for 
the purpose of deciding whether the remaining third of the said 
money shall be applied to the term last mentioned, or to the 
school which ma}^ be kept next summer. 

The inhabitants of school district No. 14 in the towns 
of Marcellus and Skaneateles, ex parte. 

Suits for penalties against district officers for neglecting to perform the duties of 
their office, must be brought by commissioners of common schools. 

The penalty provided in case district officers neglect to perform the duties of 
their office, is intended for cases of total neglect. 

If a clerk neglects to keep a book of minutes^ he is not responsible unless ai 
book is provided for him. 

This was a case in which the clerk of a school district had 
neglected to keep an)'^ record of the proceedings of the district. 
The questions presented to the Superintendent were, whether he 
could be prosecuted for neglect to perform the duties of his office 
— ^if so, by whom, and if there was any limitation of time in 
bringing such suit. 



SUPERINTENDENT OF COMMON SCHOOLS. 165 

By John A. Dix, March 28, 1834. Suits against schooi 
district officers for penalties for neglecting to perform the duties 
of their office must be brought by the commissioners of com- 
mon schools of the town; but there is no special limitation ol 
such actions in point of time. They may perhaps be considered 
as coming within the general provision of the Revised Statutes- 
contained in the 31st section, 2d vol. page 298, by a construc- 
tion which should regard the town as the party aggrieved, and 
the commissioners as the representatives of the town in bringing 
the suit. A suit could, in that case, not be brought after three 
years. 

Before the clerk of the district is prosecuted, it might be well 
to refer to the case of Spafford and Hood in the sixth volume of 
Cowen's Reports, page 478, in which the court held that the 
penalty provided by sec. 22 of the common school act, passed in 
1819,* could not be exacted for an omission of duty in an indi- 
vidual instance, but was intended for cases where there had 
been a total neglect of the duties of the office. If you will refer 
to section 74 of the Revised Statutes, vol. 1, page 480, you will 
perceive that the district is to provide a book for the clerk to re- 
cord its proceedings, &c. Without reference to the principle of 
die decision above referred to, it would be necessary, in order to 
make him answerable, to show that such a book had been pro- 
vided. 

The Trustees of school district No. 2 in the town of 
Clarkstown, ex parte. 

If trustees contract to pay a teacher a specific sum per month or per scholar, the 
mode of providing for the payment of his wages must be the same in either 
case. 

This was a case in which the trustees contracted to pay a 
teacher a specific sum for each scholar attending during the 
term, and the question presented to the Superintendent was in 
what manner his wages should be paid. 

* Sec. 72, page 480, vol. 1, R. S. In the case referred to. Judge Sutherland, 
who pronounced the decision of the court, said, '< Where it is the intention of 
the legislature to impose a penalty on an officer for the omission of any particu- 
lar duty, they use language which is clear and explicit. Thus in relation to th«; 
overseers of highways (2 R. L- 274, §14) it is provided, ' That every overseer 
of highways who shall neglect or refuse to warn the people assessed to work on 
the highways, &c. , or to collect the moneys that may arise from fines or commuta- 
tions, or to perform any of the duties and services required by the act, or which 
may be enjoined on him by the commissioners, &c., shall forfeit /or every such 
neglect or refusal, the sum of $10,' &c. The difference in the phraseology of 
these acts is very striking, and in my judgment affords strong confirmation of the 
correctness of the construction we have given to the section of the school act 
under consideration." 



lob CASES DECIDED BY THE 

By John A. Dix, April 21, 1834. The trustees of a school 
district may make a, contract v/ith a teacher to pay him by the 
month, the week, or at so much a scholar; but in raising the 
sum necessary for his compensation, they must proceed as the 
law directs. Subdivisions 8, 9, 10, 11, 12, 13 and 14, of section 
75, 1 R. S. pages 481 and 482, point out their duty, and they 
cannot by any contract with a teacher, impose upon the inha- 
bitants of the district an obUgation to pay him in any other man- 
ner. To agree to pay so much per scholar can therefore have 
no other legal effect than to furnish a rule for ascertaining the 
amount of the teacher's wages. The inhabitants must still pay 
according to the rule established by subdivision No. 12 of the 
section above referred to. ^ 

(anonymous.) 

If two fai-ms are set off from one school district to another, and contain within 
them a tl:iird not included in the order of the commissioners, the latter must 
nevertheless go with them. 

By John A. Dix, Api'il 4, 1834. A question has been sub- 
mitted to me with regard to two farms set off from one district 
to another. As I understand the case, these two farms contain- 
ed within them another farm which did not touch on the exter- 
nal boundaries of either. The question was, whether this farm, 
thus enclosed by the others, was set off' with them, or whether 
it continued to be a part of the district from which they were ta- 
ken. The answer is, that it must be considered as set off with 
them, although it be not expressly named. By setting off the 
farms referred to, the districts acquire new boundaries, and all 
the farms lying on either side of the new line of division must, 
belong to the district within the hmits of which it is includ- 
ed. School districts must consist of contiguous territory, and 
no arrangement which violates this rule can be sanctioned. 
The case submitted to me probably originated in error; and it 
would be well for the commissioners of common schools to amend 
their record, and specify the farm which has raised the question, 
as one of those set off, although it must go along with the oth- 
ers by force of the rule above stated. 

The Trustees of school district No. 11 in the town 
of Harpersfield, ex parte. 

A tax cannot be voted to pay costs of suit recovered against the trustees of a 
school district. 

In this case a suit was commenced by the trustees against an 
individual on a contract for building a school-house. Before 
bringing the suit, the trustees consulted the inhabitants, and 



SUPERINTENDENT OF COMMON SCHOOLS. 167 

•were directed to proceed. The suit failed, and the question pre- 
sented was in what manner the copts could be paid. 

By John A. Dix, April 5, 1836. The inhabitants of a 
school district cannot vote a tax to pay costs of suit recovered 
against the trustees. By referring to the 2d volume of the Re- 
vised Statutes, page 476, section 108, you will perceive that trus- 
tees may charge in their official accounts, the amount of debt, 
damages, or costs recovered against and collected of them. They 
would not be authorized to pay the amount so recovered out of 
any moneys received by them for the payment of teachers' wa- 
ges; but they would be justifiable in paying it out of moneys in 
their hands levied upon the taxable property of the district for 
any of the objects specified in sub. 5 of sec. 61, 1 R. S. page 478. 
If no such moneys were in their hands, they would be com- 
pelled to resort to the legislature for relief 

In this case the district is bound by every equitable considera- 
tion to save the trustees harmless, and the inhabitants ought, if 
there is no other method of doing so, to raise by subscription the 
amount necessary to pay the costs for v/hich they are liable. 

The Trustees of school district No. 10 in the town 
of Gainesville, against the Commissioners of Com- 
mon Schools of said town. 

In appraising a school-house, when a new district is fornmed, the commissioners 
must deduct debts due from the district retaining the school-house. 

This was an application for the decision of the Superintendent, 
on a statement of facts agreed to and submitted by the parties. 
In forming a new district, by a division of school district No. 
10 in the town of Gainesville, the commissioners appraised the 
school-house remaining in the latter at its full value, without 
making any allowance for a debt of ^25.15 due for the con- 
struction of the house, the person who erected it not having been 
fully paid. The debt thus due arose from the inability of the 
collector to collect a portion of the tax equal to that amount from 
inhabitants of the district, who were included in the assessment 
roll of the town, but wli,o had no property on which he could 
levy; and in the mean time they had removed from the district, 
with the exception of one of the individuals who was set off to 
the new district. 

By John A. Dix, Apiil 28, 1834. The commissioners do 
not, upon the statement of facts presented, appear to have done 
what the law requires. They should deduct all debts due from 
district No. 10. See sec. 68, 1 R. S. page 479. The taxes re- 
ferred to as unpaid by the persons on whom they were assessed 
are a charge on the district, as they cannot be collected of the p<^'- 



168 CASES DECIDED BY THE 

sons from whom they are due, and the whole amount should 
be deducted from the value of the school-house. 

The commissioners must amend their appraisement by de- 
ducting from the value of the school-house $25 . 15. 

(anonymous.) 

The wages of two teachers employed for different terms cannot be included in 
the same rate bill. 

By John A. Dix, May 7, 1834. If two teachers are em- 
ployed in succession for different terms, at different rates of com- 
pensation, they should receive for their wages an equal amoirat 
of the public moneys on hand, and the residue of the wages of 
each should be paid by a rate bill made out against those who 
patronized their schools, respectively. It is wholly inadmissible 
to provide by the same rate bill for the compensation of two 
teachers for different terms of instruction. 

The Trustees of school district No. 7 in the town of 
Marcy, ex parte, 

A tax to build a school-house may be raised, but should not be expended, before 
the district has acquired such an interest in the site as to be able to control 
the house. 

(A tax cannot be raised to build a school-house on a site selected without le- 
gal authority. See note.) 

In this case the agent of a glass factory gave the inhabitants 
of school district No. 7 in the town of Marcy, permission to build 
a school-house on the corner of the land belonging to the com- 
pany, and engaged to use his exertions to procure a conveyance 
of the site free of expense to the district. The question submit- 
ted was whether the district should build the school-house under 
these circumstances. 

By John A. Dix, May 7, 1834. I have received a state- 
ment of facts respecting a tax voted by the inhabitants of school 
district No. 7 in the town of Marcy, for the purpose of building a 
school-house. The right to collect the tax is perfect, without re- 
gard to the condition of the lot on which it is proposed to build 
the school-house ; and no person can refuse to pay his tax because 
the district has not procured a conveyance of the lot.* At th® 

* In the case of Baker vs. Freeman, 9 Wendell, 36, the supreme court decided 
that a tax was unauthorized and void, where it had been voted for the purpose 
of building a school-house on a site which had been selected without any legal 
authority. In this case the district had a school-house, and the site was changed 
without taking the steps required by law. 

So in the case of the trustees of school district No. in the town of WinfieM, 

page 60, the Superintendent would not allow a tax to be collected to repasj a 



SUPERINTENDENT OF COMMON SCHOOLS. 169 

same time a echool-house must not be built without some legal 
right to control it. There ought to be at least a written agree- 
ment on the part of the agent of the glass factory company that 
the district may remove the school-house, unless a title to the 
land shall be procured. If such an agreement cannot be obtain- 
ed the district should build the house elsewhere, although the tax 
may be collected notwithstanding. 

(anonymous.) 

A vote to divide public money into portions may be taken at any time before the 
money is expended. 

By John A. Dix, May 7, 1834. The inhabitants of a school 
district, may at any time before the public money is expended, vote 
that it be divided into portions, provided that by such vote it is 
aU to be expended during the year in which the money was re- 
ceived. The vote may be taken at any meeting, annual or 
special. 

(anonymous.) 

A district cannot make a second division of the pubUc money after a rate bill 
has been made out and delivered to the collector. 

By John A. Dix, May 7, 1834. Where the public money 
has been appropriated by a vote of the inhabitants of a school dis- 
trict to the payment of a teacher's wages for particular terms, and 
the trustees have gone on in pursuance of such vote to make out 
a rate bill for the amount necessary to make up the deJSciency of 
the public money to pay said teacher's wages for one term, if said 
trustees have delivered the rate bill and warrant to the collector, 
and the latter has actually commenced collecting upon such rate 
bill, the inhabitants have no right to make a different division 
of the pubhc money by a subsequent vote, and thus render it ne- 
cessary to make out a new rate bill. 

(anonymous.) 
Parents cannot be compelled to send their children to school. 

By John A. Dix, May 19, 1834. Trustees cannot compel 
any inhabitant of the district to send his children to the district 
school. They are of course entitled to receive and apply, for the 

»chool-house to which the district had no title, and which the owner had forbid- 
den the trustees to repair. 

In these two cases the money to be raised could not be properly expended. 
In the case above reported there was no violation of law in voting the tax, and 
the proposed site was to be occupied with the consent of tlie person having 
charge of the land for the time being. 



170 CASES DECIDED BY THE 

support of the district school, all the public money apportioned to 
the district ; but if any person chooses to send his children to a 
private school he has an undoubted right to do so. 

The Trustees of school district No. 3 in the town of 
Gainesville, ex parte. 

Fuei, when furnished in kind, must be in proportion to the number of children 
sent to school and the number of days' attendance. 

This was an application for the opinion of the Superintendent 
in a case where the trustees had made out, at the beginning of 
the term, an estimate of the quantity of wood to be furnished by 
each inhabitant, according to the number of children proposed to 
be sent to school, and had afterwards altered the amount, in seve- 
ral cases, to meet changes in the school. 

By John A. Dix, Mai/ 20, 1834. There is some difficulty 
in furnishing fuel in kind for school districts, and it can only be 
obviated by a willingness on the part of all concerned to do 
justice to each other. The statute provides that the proportion 
to be furnished by every person sending to school shall be " ac- 
cording to the number of children sent by each." But the lan- 
guage of this provision is clearly to receive such a reasonable 
construction as will make each inhabitant contribute in propor- 
tion to the benefits he has received. 

Suppose a school is opened for a term of three months, and 
the trustees, in making out the apportionment of fuel according 
to the form provided for such cases, (see Appendix,) set down A. 

B. and C. D. for three children each. At the end of one week 
two of the children of A. B. are taken sick and are unable to at- 
tend during the residue of the term, while the three children of 

C. D. continue during the whole period of three months. Ought 
the apportionment made at the commencement of the term to be 
enforced, when a change of circumstances has rendered it whol- 
ly unequal and inequitable? Clearly not. It must be corrected 
according to the directions of the Superintendent of Common 
Schools, under the form above referred to ;* and the principle of the 
apportionment must be, as nearly as possible, in a compound ratio 
of the number of children sent to school, and the time during which 
they are sent. This is the only construction of the law which 
can make it equal ^nd just in practice. As I have already ob- 
served there is some difficulty in making the relative contribu- 
tions of the patrons of the school exact in all cases ; but the ap- 
proximation to exactness must be as near as possible. If this 
difficulty cannot be adjusted amicably, and upon fair principles, 

' See decision by A. C. Flagg, April 28, 1831, page 39. 



SUPERINTENDENT OF COMMON SCHOOLS. 171 

it is better hereafter to vote a tax, and let the property of the dis- 
trict provide the fuel. 

The Trustees of joint school district No. 11 in the 
town of Deerfield and No. 14 in the town of Marcy, 
ex parte. 

Commissioners of common schools have no authority to designate a site for a 
school-house, or to give a conditional consent to a change of the site. 

In this case the commissioners of common schools of the towns 
of Deerfield and Marcy gave their consent to change the site of 
the school-house in a joint district in said towns. The inhabi- 
tants of the district immediately assembled, pursuant to a notice 
regularly given, and fixed a new site. Soon afterwards, on the 
application of some dissatisfied persons, the commissioners re- 
voked their former proceedings and gave a written consent to a 
change of site, provided it should be fixed by the inhabitants of 
the district at a particular place. An application was made to 
the Superintendent under these circumstances for his opinion as 
to the regularity of the proceedings of the commissioners. 

^y John A. Dix, June 12, 1834. Commissioners of com- 
mon schools have no right to designate the site for a school- 
house,* nor do I tliink it proper that they should give a condi- 
tional consent to a change of site. If such a change is required 
by the convenience of a district, they may give their consent ; but 
they have no right to say where the new site shall be fixed. 
This is a matter which has been left by the law to the decision 
of the inhabitants. 

If the facts stated in your letters were satisfactorily shown, I 
should most certainly hold the revocation of their consent as 
first given by the commissioners to be wholly nugatory. Their 
consent having once been given, and the inhabitants having 
fixed the site, the matter was ended. If any person considered 
himself aggrieved, the proper course was an appeal to the Super- 
intendent of Common Schools. 

The Commissioners of Common Schools of the town 
of Pitcher, ex parte. 

When a town is divided and a new one formed, or when two existing towns 
are altered, the public moneys are apportioned between them according to the 
number of children between 5 and 16 years of age. 

In this case several lots having been transferred by an act of 
the legislature from the town of Lincklaen to the town of Pitcher, 

*See the case of the commissionei>s of common schools of the town of Burns, 
page 1-3, 



172 CASES DECIDED BY THE 

the commissioners of the latter applied to the Superintendent to 
be instructed as to the manner in which the public moneys 
should be re-apportioned between the two towns. 

By John A. Dix, June 12, 1834. Whenever a town is di- 
vided there must be a new apportionment of school moneys, so 
that the parts separated from each other may have, in this re- 
spect, the same exact justice to which they were entitled when 
they were together. The apportionment would naturally be 
made upon the basis of the population of the respective parts; 
but as it is not easy, when a town is altered or a new one form- 
ed, to ascertain the number of inhabitants in the divided territo- 
ry, the apportionment has usually been made with reference to 
the number of children between five and sixteen years of age. 
As they are annually enumerated, a ready mode is presented of 
ascertaining, (by a standard too which is as just as the other,) 
what each part of the divided territory is entitled to. 

The process is so simple that it has usually been attended to 
by the commissioners of the two towns without any reference of 
the subject to the Superintendent of Common Schools, except in 
case of a disagreement, which very rarely happens. The same 
course can be pursued by you, with regard to the lots transfer- 
red from Lincklaen. You can agree on the apportionment and 
file a copy of the agreement with the county treasurer and 
another with the clerk of the board of supervisors. Nothing 
further will be required until the next census is taken. 

The Trustees of joint school district No. 6 in the 
towns of Tyrone and Barrington, against the com- 
missioners of common schools of the latter town. 

Joint districts can only be altered by the concurrence of the commissioners of all 
the towns of which they constitute a part. 

The orders of the commissioners altering joint districts must be put on record in 
all the towns of which the districts are a part. 

The regulation of the Superintendent requiring an appeal to be made within thir- 
ty days after the proceeding complained of, is not to be enforced against an 
aggrieved party having no knowledge of such proceeding. 

The facts of this case are recited in the Superintendent's or- 
der. 

By John A. Dix, June 12, 1834. This is an appeal by the 
trustees of joint school district No. 6 in the towns of Tyrone and 
Barrington, from the proceedings of the commissioners of com- 
mon schools of the town of Barrington in refusing to pay over 
to said trustees the public money due from the town last men- 
tioned for the present year. 

From the representations of the parties it appears that district 
No. 6, aforesaid, was formed in the year 1819, as a school district 



SUPERINTENDENT OF COMMON SCHOOLS. 173 

in the town of Wayne. This town was a few years afterwards 
divided into the towns of Wayne, Tyrone and Barrington, and dis- 
trict No. 6 became a joint district of the two latter towns. On the 
5th day of January, 1833, the commissioners of common schools 
of the town of Barrington met at the Baptist meeting house in 
said town, and formed a new school district by the designation 
of district No. 8. This district was formed wholly of territory 
belonging to the town of Barrington, but included several inha- 
bitants of joint district No. 6. On the first Tuesday of April 
last, the report of the last mentioned district for the year 1833 
was presented to the commissioners of Barrington, who refused 
to apportion any public money to said district, on the ground 
that the report was false, as it included four children residing 
with Jonathan Silsbee, and one residing with Dennis Sunder- 
lin, both of whom had been included in district Ne. 8 at the 
time of its formation. The trustees of joint district No. 6 allege, 
that Sunderlin belongs to said district, but it does not appear, 
except by inference, from the answer of the commissioners, that 
Silsbee was also included in said district previous to the forma- 
tion of district No. 8. 

The alteration made in joint district No. 6 was clearly unau- 
tliorized by law. and is therefore void. It has been repeatedly 
decided by the Superintendent of Common Schools, that the alte- 
ration of a town line does not affect the organization of a school 
district. Decision 87,* to which the commissioners have refer- 
red in their answer to the appeal, expressly declares, that "where 
the line of a new town runs through a school district, the com- 
missioners of the old and new town should regard a district thus 
intersected by a town line, as a joint district." In the original 
formation of school districts, if the lines of towns and counties 
can be made also the lines of school districts with convenience 
to the parties interested, it is desirable to adopt them, as the af- 
fairs of single districts are more easily conducted than those of 
joint districts. But a district being once formed, it cannot be al- 
tered without some action on the part of the authority appointed 
by law to make such alterations. Where a new town is formed 
and the line intersects a school district, it becomes, as a matter 
of course, a joint district, for it is only as such that it can re- 
ceive from both towns the public money, to which it is entitled. 
The moment a single district becomes joint, the action of the 
commissioners of all the towns of which it is a part, is indis- 
pensable to give validity to any alteration in its boundaries. 
The commissioners of Barrington had, consequently, no right to 

* See the case of the commissioners of common schools of the town of Star- 
key, page 1. 



174 



CASES DECIDED BY THE 



set off an inhabitant from joint district No. 6, without the con- 
currence of the commissioners of Tyrone. 

The commissioners of Barrington object to the regularity of 
the appeal, that it contains no map exhibiting the sites of the 
school-houses of the districts concerned. Such a map is not in 
this case necessary. The question presented is not whether an 
alteration in joint district No. 6 ought or ought not to be made 
as a matter of convenience to the parties, but whether the alte- 
ration made is valid, and if so, whether the ground assumed by 
the commissioners in refusing to apportion to that district its pro- 
per share of the pubhc money can be maintained upon legal 
principles. 

Section 21st of the 1st vol. of the Hevised Statutes, page 471, 
and decision No. 77* of the Superintendent, intend clearly that 
no alteration shall be made in a joint district, unless such alte- 
ration has the concurrence of a majority of the commissioners of 
each of the towns interested. Whether the district remains a 
joint district after such alteration, or whether the effect of such 
alteration is to make it a single district, is of no consequence. 
The rule is the same in both cases. This construction is in en- 
tire accordance with the whole tenor of the Superintendent's de- 
cisions ; and if it is not clear from the language of section 21 
that such is the true meaning of that section, all doubt on this 
point will be dispelled by a reference to section 65, 1st vol. Re- 
vised Statutes, page 479, which provides for the case of a refu- 
sal on the part of the commissioners of one town to act with the 
commissioners of another for the purpose of altering a joint dis- 
trict. The true course to have been pursued in this case was, 
for the commissioners of Harrington, on the application of some 
of the persons interested in the new school district to have sum- 
moned the commissioners of Tyrone, to attend a joint meeting 
of the commissioners of both towns for the purpose of setting 
off to the new district the persons residing in Barrington, and 
belonging to joint district No. 6. In this alteration the com- 
missioners of both tov/ns must have concurred, and the pro- 
ceedings should have been made a matter of record in both 
towns. Beyond this the commissioners of Tyrone had no au- 
thority to act. The formation of a new school district lying 
wholly within the town of Barrington and composed of persons 
not belonging to a joint district was a matter for the determi- 
nation of the commissioners of that town only ; but no person 
belonging to a district lying partly in Tyrone could be set to 
such new district without the concurrence of the commissioners 

* See the case of the inhabitants of joint school district No. 15 in Warwick 
and Goshen, page 23. 



SUPERINTENDENT OF COMMON SCHOOLS. 175 

of the latter town. It follows, of course, that all orders making 
alterations in joint districts must be put on record in all the towns 
of which such districts constitute a part, even though such alte- 
rations do not directly affect persons residing in all the towns in 
which they are recorded. Thus, although no inhabitant of Ty- 
rone was taken from district No 6 to form district No. 8, the or- 
der signed by the commissioners of both towns should have been 
recorded in Tyrone, because No. 6 lies partly in that town. It 
is clear that unless such records are made, the conniiissioners 
of one town can never know the boundaries of a joint district 
without resorting to records in another town, over which they 
have no control. 

The objection made by the commissioners, that their proceed- 
ings in altering joint district No. 6 were not appealed from within 
thirty days, the time limited by the regulations of the Superin- 
tendent, has no force. Proceedings wholly without authority 
will at any time be declared void by the Superintendent on ap- 
plication to him, with notice to the party interested in sustaining 
them. The proceeding under consideration is not only void for 
want of authority in the commissioners of Barrington to make 
an alteration in a joint district without the concurrence of the 
commissioners of Tyrone, but it is wholly inoperative for want 
of the legal notice required by law to be served on the trustees 
of a district when an alteration is made in it without their con- 
sent. It does not appear that any such notice was ever given ; 
and it would surely conduce very little to the ends of justice to 
sustain a void proceeding, if such an exercise of power were pos- 
sible, on the mere ground that it had not been made a subject of 
appeal within the time prescribed by regulation, when the party 
interested in vacating it had no notice of such proceeding. Re- 
gulations prescribing the period within which proceedings shall 
be objected to, necessarily suppose a notice to the party thus re- 
stricted by the liiuitation of time. 

The same observations apply to the failure of the appellants 
to object to the refusal of the commissioners to apportion to joint 
district No. 6 its proper share of the public money. It does not 
appear that the trustees had any notice of that proceeding imtil 
they made application for the money, to which they consider- 
ed the district entitled; and it is sufficient that the appeal was 
made within thirty days after the facts came to their knowledge. 
The course of the commissioners of Harrington appears to the 
Superintendent to have been irregular from beginning to end. — 
They will find in the law no authority for depriving a school 
district of its share of the public mone}^, because the trustees 
have not made an accurate report. If the commissioners be- 
lieved that the trustees of joint district No. 6 had made a false 



176 CASES DECIDED BY THE 

report, with the intent of procuring for the district more than its 
just proportion of the pubUc money, they should have commenc- 
ed a prosecution for the penalty annexed to the offence by sec. 
96, page 485, 1 R. S. If they deemed the report merely inac- 
curate, without any intention to defraud, they should have re- 
served the money, to which the district was entitled, until the 
trustees had an opportunity of correcting the error. If a school 
district has forty scholars, and the trustees report forty-five, the 
district Ought not to be deprived of its public money, nor should 
its equitable rights be disregarded. It should receive so much 
as its actual number of children entitle it to ; and the trustees 
should be prosecuted for rendering a false report, unless the error 
was unintentional, in wliich case an opportunity should be given 
to correct it. 

Upon a full view of all the circumstances of the case it is de- 
cided, that the proceedings of the commissioners of common 
schools of the town of Barrington, in annexing to school district 
No. 8, certain inhabitants belonging to joint district No. 6 in 
Barrington and Tyrone, on the 5th January, 1833, were void 
and of no effect, and that said inhabitants still belong to said 
joint district. 

x4.nd it is ordered, that the commissioners of common schools 
of said town of Barrington do apportion to said joint district, out 
of the next public moneys which shall come into their hands 
the sum which said district should have received on the first 
Tuesday of April last, according to the principles of this deci- 
sion. 

This order is not intended to prevent such transfer of the in- 
habitants of joint district No. 6 to district No. 8, Barrington, as 
the convenience of the former or the interest of the latter may 
require. No alteration, however, can be made, except with the 
concurrence of the commissioners of Tyrone. Should the lat- 
ter refuse, on application to them, to do what justice requires, 
an appeal may be made to the Superintendent, and he will take 
care that the rights of the parties are not prejudiced by such re- 
fusal. 

The Trustees of school district No. 2 in the towns 
of Italy and Prattsburgh, against the inhabitants 
of said district. 

niegal votes not affecting the result do not render proceedings void. 
Commissioners cannot give a second notice lor the organization of a new district 
where a meeting has been held and officers chosen under the first notice. 

The facts of this case are given in the Superintendent's 
order. 



«tJPERINTENDEKT OF COMMON SCHOOLS. 177 

By John A. Dix, June 13. 1634. On the 8th of March 
last, the taxable inhabitants of school district No. 2 in the towns 
of Italy and Prattsburgli, at a meeting held for the purpose of 
organizing said district, proceeded to the election of district of- 
ficers, and fixed a site for the school-house. The site was se- 
lected by a vote of thirteen to nine. Adjourned meetings w^ere 
held on the lotli and 29th March, and on the 19th April, for the 
purpose of making arrangements to build a school-house, furnish 
it with necessary appendages, <fec. At the meeting last mention- 
ed, a contention arose as to the legality of the proceedings of the 
meeting on the Sth March, on account of certain votes alleged 
to have been given by persons not qualified to take part in said 
proceedings. Of these votes two were said to have been given 
in favor of, and one against the site selected. In consequence 
of this objection to the proceedings of the Sth March, application 
was made to the commissioners of common schools to renew 
their notice for a ineeting to organize the district, and to treat 
the previous proceedings as null and void. The notice was giv- 
en by the commissioners pursuant to the application to them, and 
on the 29th April a meeting was held, new district officers with 
one exception were chosen, and another site fixed fw the school- 
house. To these proceedings certain inhabitants object, on the 
ground that the first meeting was legal notwithstanding that 
illegal votes were given ^ alleged. The appeal has been regu- 
larly served on the parties interested in sustaining the proceed- 
ings of the last meeting and noticed for a hearing on the fourth 
of June. No answer having been received, the case is now de- 
cided on the testimony produced by the appellants. 

The first question to be determined is, whether the alleged 
illegal votes, if given as is stated, would have rendered the pro- 
ceedings of the meeting on the Sth March void. 

The rule is well settled that proceedings will not be vitiated 
by illegal votes unless a different result would have been pro- 
duced by excluding such votes. If the illegal votes could not 
by possibility affect the result, the proceedings, in relation to 
which they were given, ^^^ll not be disturi^ed on account of such 
votes. In this case there were thirteen votes in favor of the site 
selected and nine against it. Deducting from the former the two 
illegal votes alleged to have been given, and there would still be 
a majority of ^vo votes in favor of it. The result would have 
been the same, whether the illegal votes had been taken or not. 
There is no pretext, therefore, for disturbing the proceedings for 
the reason assigned ; and the act complained of on the part of 
the commissioners of common schools, with a viev.^ to annul 
them, was wholly unauthorized and void. In undertaking to 
renew the notice to the inhabitants to hold a meeting for the 

12 



ITS CASES DECIDED BY THE 

purpose of i-e-organizing the district, re-appointing district offi- 
cers and selecting a new site, the commissioners liave altogether 
mistaken and exceeded their powers. The only cases in which 
such a notice could be lawfully renewed, are those specified in 
sec. 57, page 477. 1 R. IS. that is, where the inhabitants refuse 
or neglect to assemble on the first notice, or where a district hav- 
ing been formed and organized, is afterwards dissolved, so that 
no competent authority exists therein lo call a special district 
meeting. Neither of these cases have occurred, and the com- 
missioners had, therefore, no authority to act. 

If any person was aggrieved by the proceedings of the meet- 
ing on the Sth March, he should have appealed to the Superin- 
tendent of Common Schoo-ls for redress, and there would be no 
just cause of complaint if in setting aside the proceedings of the 
29tli April no opportunity should be given to reconsider those of 
the Sth March. 

The right of the inhabitants to review their proceedings, so 
far as to change the site selected for the school-house, was per- 
fect. The act of Feb. 17, 1S31, provides that "whenever a 
school-house shall have been built or purchased for a district, the 
site of such school-house shall not be changed,'' &c. except in 
a certain manner. In this case a school-house had neither been 
built nor purchased, and the taxable inhabitants had an undoubt- 
ed right to change, by a majority of votes,*the site originally select- 
ed. But as the meeting on the 29th April was illegally called 
by the conmiissioners and cannot, therefore, be sustained, and as 
the site may have been fixed at the first meeting without due de- 
hberation, the Superintendent deems it due to a regirlar obser- 
vance of the requirements of the law, as well as to the best in- 
terests of the district, which are intimately connected with a ju- 
dicious selection of a site for a school-house, to submit the ques- 
tion again to the inhabitants. 

It is accordingly decided, that the proceedings of the meeting 
held on the 29th April aforesaid are void and of no effect, and 
that the officers chosen on the Sth March am the proper oflftcers 
of said district No. 2. And it is ordered that the trustees of said 
district proceed forthwith to call a special meeting of the inhabi- 
tants for the pui-pose of considering whether any change ought 
to be made in the site of the district school-house. 



SUPERINTENDENT OF COMMON SCHOOLS. 179 

John Owens, against t\\e Commissioners of Common 
Schools of the town of Galen. 

If a district fills a vacancy in the office of trustee after one month, by an elec- 
tion, the election is valid, and the commissioners cannot at a subsequent timo 
make an appointment to the same vacancy. 

The facts of this case are fully stated in the Superintendent's 
decision. 

By John A. Dix, June 14, 1834. On the 14th day of 

March last Joseph Pettis, one of the trustees of school district No. 
12 in the town of Galen, Wayne county, removed from said 
town; and on the 11th of April ensuing the two remaining trus- 
tees called a special meeting, for the purpose of filling the vacan- 
cy occasioned by his removal. 

On the 17th of April the meeting was held, in pursuance of 
tlie notice given by the trustees, and John Owens was duly elect- 
ed to fill the vacancy occasioned by the removal of said Pettis. 

On the 28th of April the commissioners of common schools of 
Galen, having been applied to for the purpose, appointed John 
Richmond a trustee to fill said vacancy, on the ground that John 
Owens was not elected within one month after the removal of 
Pettis, and that his election was consequently void. From this 
proceeding John Owens appeals. 

The Superintendent is of opinion that the election of Owens 
was valid. The right of the cominissioners to make an appoint- 
ment at any time after the expiration of one month, and before 
the inhabitants had filled the vacancy by election, was perfect. 
But it was necessary, in order to give validity to the appoint- 
ment, that the power conferred on them should be exercised pre- 
viously to any action in the premises on the part of the district. 
The intention of the law was to provide for supplying vacancies, 
in case it were not done in the usual manner; and it was for this 
reason only that a conditional authority to fill them v/as confer- 
red on the commissioners. The trustees should have provided 
for an election within one month after the occurrence of the va- 
cancy; but the Superintendent deems it inconsistent with the 
spirit of the elective system as well as the intention of the com- 
mon school acts, to construe the limitation of time into an ab- 
solute forfeiture of the right of choice. The forfeiture would 
have been absolute if the commissioners had made an appoint- 
ment after the lapse of a month and before an election by the dis- 
trict; but they neglected to do so, and as the action of the district 
was not inconsistent with any positive prohibition, the proceeding 
must be sustained. 

It is therefore ordered, that the election of John Owens be con- 
firmed, and the appointment of John Richmond be, and it is 
hereby declared to be null and void. 



180 CASES DECIDED BY THE 

The Trustees of school district No. in the town 

of Warren, ex parte. 

The power of inspectors over the course of studies in schools should, ordinarily, 
be confined to a general supervision of such studies. 

This was an application from the trustees of a school district 
in the town of Warren, for the Superintendent's directions, in a 
case where the inspectors, in examining into the condition of the 
district school, had given special directions as to the number of 
hours during which individual children should be instructed in 
particular branches. 

By John A. Dix, Jhme 30, 1834. The inspectors of com- 
mon schools are expressly authorized by law to " give their ad- 
vice and direction to the trustees and teachers of such schools, as 
to the government thereof, and the course of studies to be pur- 
sued therein." This authority cannot very well be limited in its 
exercise by any general rules. If it should be abused in such a 
manner as to oppress the teacher or the scholars, the Superinten- 
dent of Common Schools has unquestionably the right, on ap- 
plication to him, to inquire into the facts and redress their 
grievances; and I should deem it my duty to institute such an 
inquiry, on a complaint regularly made in the manner specified 
by the regulations of the Superintendent. 

With regard to the extent of the inspectors' authority, this can 
only be determined in each case, with a reference to the attend- 
ing circumstances. The intention, however, so far as it can be 
gathered from the language of the law, was to give them a ge- 
neral supervision of the course of studies; and I think they 
should not, in ordinary cases, consider themselves called on to 
regulate mere details. Whether a child should read in one book 
or another, or write one line or six per day in his copy book, are 
matters which should be left to the teacher. The functions of the 
inspectors are of a higher order, and they should be content with 
exercising them according to the spirit of the law, from which their 
authority is derived. If the teacher is incompetent or unworthy 
of his place, they may annul his certificate; but they ought not to 
strip him of all authority by entering into the httle arrangements 
of his school, and undertaking to determine the ability of each 
scholar to accomplish the particular task assigned to him. I 
do not wish to be understood, however, as intimating that the 
inspectors may not, in case of any error on the part of the 
teacher in this respect, point out and require him to correct it. 
The propriety of their interference must, as I have already ob- 
served, depend on the circumstances of the case. But ordinarily 
their duty would consist in a general supervision of the govern- 



SUPERINTENDENT GF COMMON SCHOOLS. 181 

uient and course of studies established in the schools within their 
jurisdiction. 

The Trustees of school district No. 15 in the town of 
Cicero, against the Commissioners of Common 
Schools of said town. 

When defective reports are made by trustees of school districts, commissioners 
should give time to correct them, and retain a portion of the public money in 
tlieir hands^ to abide the result of such correction. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, June 30, 1834. On the first Tuesday of 
April last the commissioners of common schools of the town of 
Cicero apportioned the public moneys allotted to said town among 
the school districts therein. From this apportionment school dis- 
trict No. 15 was excluded, in consequence of the omission of the 
trustees to state in their annual report for 1833 the time, during 
which their school had been taught by a qualified teacher. Al- 
though the commissioners acted strictly according to law, in with- 
holding the money from district No. 15, by reason of the defect 
referred to, they should have retained the money in their hands 
to be distributed ultimately among the other districts in the town, 
or to be given to No. 15, in case the trustees on notice to them, 
had satisfied the commissioners that the mistake was inadvertent. 
The commissioners will see, on reflection, the propriety of afford- 
ing time to make explanations, where any doubt exists with re- 
gard to the defects which frequently exist in the reports of school 
districts, by adverting to the course which has been pursued in 
the present case. The trustees have made oath that the error 
was unintentional, and that their school was actually taught six 
months during the year 1833 by a qualified teacher. But in or- 
der to remedy the defect, and procure their proper share of the pub- 
lic money, they are under the necessity of making application to 
the Superintendent of Common Schools; and will, perhaps, be 
deprived of the benefit of the conmion school fund for a whole 
year. Although the commissioners have acted strictly according 
to the letter of the law, they might in equally strict accordance 
with its spirit have avoided the inconveniences referred to by re- 
taining the money, and making its eventual application depen- 
dent on the testimony of the trustees, with regard to the excep- 
tionable part of their report. These remarks are not designed to 
censure the course pursued by the commissioners, but merely to 
intimate that they may, in the exercise of that guardianship 
over all the districts within their jurisdiction with which the law 
has clothed them, spare themselves, as well as the districts, in- 



182 



CASES JDECIDEB BY THE 



convenience by supposing unintentional error in returns, which 
are on their face defective. 

It is ordered that the commissioners of common schools of Ci- 
oero pay to the trustees of school district No. 15 in said town, 
out of any pubhc moneys now in, or which shall hereafter come 
into, their hands, such sum as said district would have been en- 
titled to receive in April last, if the report of the said trustees for 
the year 1833, had set forth that a school had been regularly 
taught in said district six months during the year by a qualified 
teacher. 

The Trustees of school district No. 2 in the town of 
New-Lisbon, ex parte. 

When the site of a school-house has been fixed, it may be changed by a majori- 
ty of votes at any time before the school-house is built or purchased. 

A site for a school-house was fixed by vote of the inhabitants 
of school district No. 2 in the town of New-Lisbon; but, before 
the school-house was built, a special meeting was called, and 
the site was changed to another place by the votes of a majority 
of the inhabitants. The question raised in this case was, whe- 
ther the site, having been once selected, could be changed by a 
majority of votes. 

By John A. Dix, July 5, 1834. A majority of the inhabi- 
tants of a school district may fix the site of the school-house 
where there is none, to which the district has a legal title, and a 
majority may change it at any time before the school-house has 
been purchased or built. No school-house having been built in 
this case, and the district being without one, the resolution chang- 
ing the site by a majority of votes was legal. 

The Trustees of school district No. 3 in the town of 
Clayton, ex parte. 

Trustees cannot sue an associate trustee for neglecting to discharge the duties of 

his office. 

In this case one of the trustees of a school district wholly ne- 
glected to perform the duties of his oflSce, though not having re- 
fused to accept it. The two associate trustees commenced a suit 
against him for the penalty provided in such cases, but a ques- 
tion having arisen as to their right to bring the action, the Su- 
perintendent's opinion was sohcited by them. 

By John A. Dix, July 14, 1834. I am of opinion that the 
109th sec. page 487, 1 R. S. gives the trustees of common 
schools no power to sue an associate trustee for neglecting to 
perform his duties. This case appears to me to be one not ex- 



SUPERINTENDENT OF COMMON SCHOOLS. 183 

presdy provided for, and therefore, comes within the provisions 
of the 8th sub. of sec. 20, page 470, 1 R. S. Tlie suit must 
therefore be brought by the commissioners of common schools. 

The Trustees of joint school district No. 2 in the 
towns of Fishkill and Poughkeepsie, ex parte. 

When an old school-house is sold and a new one built, a district cannot raise by 
tax $400 in addition to the avails of the sale of the old house. 

Persons authorized to vote for district officers, may vote for a tax though they 
may not be liable to be assessed for it. 

In joint school district No. 2 in the towns of Fishkill and 
Poughkeepsie, a tax of S$400 was voted to build a new school- 
house. The trustees were then authorized to sell the old house 
and to apply the proceeds of such sale, together with the .$400 
to be raised by tax, to the erection of the new building. The 
opinion of the Superintendent as to the vaUdity of this proceeding 
was requested ; and also as to the right of persons, not liable to 
1)6 assessed for a tax, to vote for it. 

By John A. Dix, Juli/ 15, 1834. I am of opinion that you 
i^annot raise four hundred dollars in addition to the avails of the 
sale of the old school-house, for the purpose of building a new 
one. without first obtaining tlie consent of the commissioners of 
common schools. The intention of the law is clear, and where- 
ver taxation is in question it must be strictly followed. If 
more than $400 is necessary, the commissioners can say so by 
giving it as their opinion that a larger sum will be required, which 
sum they must specify. The most simple mode of proceeding 
would be to sell the old school-house, and after ascertaining the 
amount of the avails, vote the requisite additional sum. But, if 
such requisite sum, together with the avails of the sale exceeds 
$400, the certificate of the commissioners must be procured 
agreeably to the provisions of sec. 64, page 479, 1 R. S. 

When the site of a school-house is changed the avails of the 
sale of the school-house, and of the site on which it stands, must, 
by the act of Feb. 17, 1831, be applied to the payment of ex- 
penses in procuring a new site, erecting a school-house, &c. 
This provision is to be taken in connexion with the 64th sec- 
tion of the act relating to common schools, and the avail • of 
every such sale must go to the reduction of the amount which 
the inhabitants of a district may vote under the section referred 
to. There is no hardship in this construction of the law. If a 
greater sum is required, it is only necessary to apply to the com- 
missioners of common schools to certify that it ought to be rais- 
ed. 

All persons entitled to vote for the election of school-district 



184 CASES DECII>ED BY TELE. 

officers may vote for a tax for school district purposes, even though 
tliey may not be liable to he assessed for it. 

The Commissioners of Cbmmoa Schools of the town' 
of Rockland, ex parte. 

A commissioner of common schools is answerable only for moneys which come 
into his hands. 

Ill the year 1833, the collector of the town of Rockland paid 
the moneys levied upon the town for common schools to one of 
the commissioners and took his receipt. The commissioner soon 
after receiving the money,, absconded with it; and his two as- 
sociates requested the opinion of the Superintendent as to. their. 
liability for the sum thus abstracted. 

By John A. Dix, July 15,. 1834. I have received your let- 
ter, desiring to know whether you can be held answerable for 
moneys paid to one of your associates and lost in consequence of 
his running away. You are answerable only for such moneys 
as have come into your hands. If the moneys referred to were 
paid directly to him as a commissioner of common schools by 
the town collector, the town has no remedy either against you 
or the collector for it. The defaulter is alone responsible. 

The inhabitants of joint school district No. 11 in the 
town of Deerfield, and No. 14 in the town of Mar- 

cy, ex parte. 

The Superintendent has only an appellate jurisdiction in the formation and alte- 
ration of school districts. 

This was an application to the Superintendent to divide a 
school district and form a new one, without any previous appli- 
cation to the commissioners of common schools. 

By John A. Dix, July 16, 1834. The right of the Super- 
intendent of common schools to form or alter school districts, 
arises only in cases of appeal from the decisions of the commisioners 
of common schools, to whom the power is given by law in the 
first instance. AppUcation must he made in this case to the 
commissoners of common schools of the two towns, and if they re- 
fuse to act, or if they make the alteration and any person shall 
think himself aggrieved by their proceedings, an appeal may be 
made to the Superintendent. 



superintendent of common schools. 185 

(anonymous.) 

Trustees cannot reassess a tax to make up a deficiency on account of the inabi- 
lity of an individual to pay his portion; nor can they make out a new rate bill 
in such a case. 

By John A. Dix, July 17, 1834. The trustees of a school 
district have no right to reassess a tax upon the inhabitants 
wliere the collector has been unable to collect the whole amount 
on the tax list put into his hands. In case of a rate bill to pay 
teachers' wages^ the trustees may exempt such of the inhabi- 
tants as they may consider unable to pay. But the rate bill hav- 
ing been put into the hands of the collector^ they cannot recal it 
the purpose of making new exemptions. If, however, any of those 
for who have been included in the rate bill prove unable to pay, 
the trustees would undoubtedly be justifiable in paymg the defi- 
ciency out of any public moneys in their hands, unless those mo- 
neys have been expressly appropriated by a vote of the district to 
a particular term of the year. In this case the inhabitants may 
be called together and vote so much of the money thus appro- 
priated as is necessary to be applied to that object. 

In case of a tax list to raise money to build a school-house, 
furnish it Avith fuel, (fcc, the inhabitants have full power to vote 
a new tax to make up any deficiency occasioned by the inabih- 
ty of an individual to pay his proportion where there has been 
no default on the part of the collector,^ and may, therefore, save 
the trustees harmless on their contracts for the construction of the 
house, «fcc. 

It is only in these modes that the deficiencies referred to can 
be supplied. The law gives no express authority to trustees to 
reassess any part of a tax^ and they cannot take it by implica- 
tion. Although such an authority is sometimes desirable, yet it 
would be liable to abuse, and would be likely to lead to great 
neghgence on the part of trustees. On the whole the law is, I 
think, better as it stands. If trustees are prompt, vigilant and 
judicious in their arrangements, they will rarely find themselves 
involved in difficulty ; and in the few cases of unavoidable em- 
barrassment, which may occur from the causes referred to, a re- 
medy will generally be found in the course above indicated. 



186 CASES DECIDED BY THE 

The Trustees of school district No 4 in the town of 
Alexander, ex 'parte. 

Noticef5 for special meetings must be in writing. 

A written notice given by the clerk of a district in pursuance of a verbal direc- 
tion Irom the trustees is good. 

The proceedings of a meeting held without any attempt to give a legal notice are 
not valid. 

In this case the trustees of school district No. 4 in the town of 
Alexander, directed the clerk verbally to call a special meeting 
of the inhabitants. The notices were given verbally, and in 
every case but one, more than five days before the time appoint- 
ed for the meeting. The meeting was held accordingly, but se- 
veral of the inhabitants v/ere absent. The question submitted 
was, whether the proceedings of the meeting held in pursuance 
of such a notice were valid ? 

By John A. Dix, July 31, 1834. A notice to the inhabi- 
tants of school districts to attend a special meeting must be in 
writing, and it must be read in the hearing of each inhabitant 
qualified to vote, or in case of his absence, a copy of so much of 
the notice as relates to the time and place of meeting must li>e 
left at the place of his abode at least five days before the time 
of the meeting. See sec. 56, and sub. No. 2 of sec. 74, of the 
statute entitled " Of common schools." 

If the trustees of a school district give a verbal direction to the 
clerk to call a special meeting, and the clerk prepares and serves 
a w^ritten notice in the manner above prescribed, it is sufficient, 
and the proceedings of the meeting held in pursuance of such 
notice will be deemed valid precisely as though the trustees had 
given a written direction to the clerk. 

If the clerk undertakes to give a notice in the manner provid- 
ed by the statute, and has failed unintentionally to serve it on all 
the persons entitled to receive it, the proceedings of the meeting 
are not, by reason of such failure, void. Sec. 63 of the statute 
above referred to, provides that " the proceedings of no district 
meeting, annual or special, shall be held illegal for want of a 
due notice to all the persons qualified to vote thereat, unless it 
shall appear that the omission to give such notice was wilful 
and fraudulent." This provision was intended for cases where 
through accident or mistake the proper legal notice is not given to 
all who are entitled to it ; but it cannot be construed to extend 
to cases in which no attempt is made to give the notice required 
by law to any of the inhabitants. If notice is given verbally, 
and all attend, the defect is not cured by such attendance : the 
persons so meeting are not legally assembled, and they are 
wholly without authority to act. A notice for another meeting 
should be given, and all proceedings under the meeting which 
bnc; hpen held should be abandoned. 



superintendent of common schools. 187 

(anonymous.) 

A tax to build a school-house cannot be expended until a site is chosen and a ti- 
tle to it obtained. 
Promissory notes should not be taken for taxes. 

By John A. Dix, August 2, 1834. Trustees of school dis- 
tricts have no right to apply money raised by tax for the con- 
struction of a school-house to the object in view, until a site has 
been chosen by vote of the inhabitants; nor should the money 
be expended until a clear undisputed title to the site has been 
obtained. If there are liens on the property, they should be re- 
moved before any expenditure is made. 

Promissory notes given for taxes are altogether unauthorized 
by law. The collector, on receiving a warrant from the trus- 
tees, should proceed at once to execute it. There is no excuse 
for deviating from the requirements of the law, and if officers of 
school districts take upon themselves to pursue courses not au- 
thorized, they will be personally responsible for any loss which 
may result to the districts in consequence of such departure from 
prescribed rules of proceeding. ^ 

(anonymous.) 

Trustees are unwarrantable under the general authority to employ all teachers, 
if they refuse to employ any, and thus deprive the district of its public mo- 
ney. 

By John A. Dix, September 2, 1834. The trustees of 
school districts are invested by the statute with the authority of 
contracting with and employing all teachers; and they may, un- 
der this general authority, discontinue a teacher even though he 
may be properly qualified. If they violate their contract with 
him they will be answerable in damages ; but this is a ques- 
tion between them and the teacher. The right to employ a 
teacher, however, is not to be construed to authorize the trustees 
to refuse to employ any teacher whatever, and thus deprive the 
district of a school altogether. It is their duty to see that a school 
is kept as the law intends. 

The Commissioners of Common Schools of the town 
of Deerfield, ex parte. 

Commissioners of common schools must furnish answers to appeals brought 

from their decision in refusing to alter a school district. 
Notice must be given to the real parties in interest, where the commissioners of 

common schools take no pains to sustain their proceedings. 

This was an apphcation for the direction of the Superinten- 
dent as to the duty of the commissioners of common schools with 
regard to answering an appeal in a case where they had lefus- 



188 CASES DECIDED BY THE 

ed to divide a school district and an appeal liad been brought front 
their decision. 

By JaHN A. Dix, September 2, 1834. Where the com- 
missioners of common schools refuse, on application to them, to 
alter a school district,, they ought, in case of appeal, to make the 
statements required hy the regulations. The regulations being 
established by the Superintendent of Common Schools under the 
authority conferred on him by law, are to be deemed a part of 
the law itself, and are equally binding on all concerned. Al- 
though the commissioners may not in the case referred to by you, 
be real parties in interest, it is manifest that they must be par- 
ties to the appeal which is brought from their decision ; and it is 
their duty, therefore, to furnish an answer to it. The reasons 
of the commissioners for refusing to act, constitute their answer 
to the appeal. If the appellants furnish a map of the district, 
the accuracy of which is not disputed by the commissioners, 
tlie latter need not furnish another,, but their assent to its accu- 
racy will be considered, so far, as an agreement upon the facts 
of the case. Where the commissioners have taken no pains 
to sustain their decisions, the Superintendent has required per- 
sons appealing from such decisions to give notice of the appeal 
to the real parties interested in resisting it, in order that the 
whole matter may be fairly and fully presented to him ; and in 
such cases statements under oath have been received from the 
parties last referred to. 

(anonymous.) 

Trustees may sue for trespass in case the district school-house ia- forcibly entered 
without their consent. 

By John A. Dix, September 5, 1834. Trustees of school 
districts have by law " the custody and safe keeping of the dis- 
trict school-house," and they may sue for trespass if it ia forcibly 
entered without their consent. The power is not expressly con- 
ferred on them by statute, but it is necessarily implied in the 
authority above given, as well as in that of holding district pro- 
perty " as a corporation," for they cannot hold it without the pow- 
er to defend the possession. Indeed the general maxim of law, 
which gives to persons charged with the custody of property^ 
the right to protect it and recover damages for injuries it may 
have sustained, is a sufficient foundation for the exercise of the 
power. The trustees, being invested with the custody and safe 
keeping of the house, must be deemed to be actually and law- 
fully in possession of it; and they have, therefore a right to bring 
an action against intruders. 



SUiPERINTENDENT OP COMMON SCHOOLS. 1S9 

The Commissioners of Common Schools of the town 
of Gorham, ex parte. 

Commissioners of common schools must make an annual account in writing to 
their successors in office of all school moneys received and expended by 
them. 

A transfer of vouchers is not a sufficient account. 

If commissioners neglect to account, they may be prosecuted by their succes- 
sors. 

In the town of Gorham one of the eoinmissioners of common 
schools in office in the year 1833, was re-elected in 1834, and 
two new ones were chosen. The one, who was re-elected, re- 
moved soon afterwards from the town. The commissioners, 
whose term of office expired in 1834, rendered no account of 
the school moneys received and expended by them, but otiiered 
to hand over to their successors the receipts of the trustees of 
school districts for moneys paid to tliem. The direction of the 
Superintendent was requested as to the proper course to be taken 
to compel them to account in writing. 

By John A. Drx, September 17, 1834. Under section 35, 
page 473, 1 K S. it is the duty of the commissioners of com- 
mon schools to render to their successors in office "a just and true 
account" of all moneys received and expended by them. This 
accoimt must be ''in writing," according to the requirements of 
the same section. Now it must be obvious that a mere transfer 
of vouchers or receipts is not a sufficient compliance with the re- 
quirement of the law. There should be a written statement of 
the amount of moneys received, appropriated and expended by the 
commissioners during their term of office. This statement or 
account must "be filed and recorded" in the office of the town 
clerk : and whether one or all of the persons in office are re- 
elected, the rule is equally applicable. The account must be made 
out, filed and recorded in the same manner as if different indi- 
viduals were elected. The intention of the law is, that there 
shall be on record in the clerk's offxe a regular account of the 
pecuniary transactions of the commissioners in each year : and 
a compliance with this requirement can in no case be dispensed 
with. 

If commissioners of common schools, at the expiration of 
their office, neglect to make or render an account as aforesaid 
witliin the time limited by law, it is the duty of their successors 
to prosecute them under section 39, page 474, 1 R. S. 

In the case mentioned in your letter, I should recommend that 
this reply should be shown to your predecessors, and if they 
make out an account promptly, the delay should be overlooked. 
But if they refuse, they should be prosecuted. In this case there 
must be a separate suit against each commissioner, as the penal- 



190 CASES DECIDED BY THE 

ty is separate. You may sue one or two or three as you choose. 
It would be most proper to sue both of the two. who were not 
re-elected. As the other has removed, you may not be able to 
reach him. The suits must be broug-ht in the name of yourself 
and your asssociate commissioner. The third having removed 
from the town has ceased to be a commissioner. 

John Owens, a trustee in school district No. 12 in 
the town of Galen, against his associate trustees. 

One trustee cannot open a school in pursuance of a vote of the district, nor can 
the other two trustees open a school until the inhabitants have designated the 
place, if there is no school-house in the district. 

The facts of this case are stated in the Superintendent's de- 
cision. 

By John A. Dix, September 24, 1834. On examination 
of the appeal of John Owens, one of the trustees of school dis- 
trict No. 12 in the town of Galen, from the proceedings of his 
associate trustees in relation to a school set up by the two latter, 
it appears that two schools have been kept in the district, one 
at the house of Mr. Daniel Burnet, under the direction of Seth 
Brown and Silas Brown, two of the trustees, and the other at 
the house of Mr. Tibbits, under the direction of the appellant. 
It is alleged by the latter that he employed a teacher and set 
up this school in pursuance of a vote of the inhabitants of the 
district called under a notice from a majority of the trustees. It 
is alleged by the two other trustees that this meeting was not le- 
gal, and that they as the majority had full power to engage a 
teacher and open a school wherever they should think proper. 

The Superintendent is of opinion that there has been an im- 
proper exercise of authority on both sides. In the first place 
Owens had clearly no right, without the consent and co-opera- 
tion of one of the other trustees, to open a school or do any 
other act in relation thereto notwithstanding the vote of the dis- 
trict; for if that vote was given upon a fair submission of the 
question, a majority of the trustees should have concurred in 
executing it. On the other hand, if a school district has no 
school-house, the trustees cannot open a school until the inhabi- 
tants have designated the house, in which it shall be kept, or 
given the trustees a discretion as to the selection of a place for it. 
The trustees should have submitted this question to the district^ 
and in acting without authority after a meeting had been called 
pursuant to a notice signed by one of them, they have made 
themselves responsible to the teacher for his wages, and have 
contributed to keep up a controversy, which should have been 
put at rest by a fair vote of the inhabitants. Under these circum- 



SUPERINTENDENT OF COMMON SCHOOLS. 191 

stances, both parties must provide for the payment of their tea- 
chers as they can; for the public money cannot properly be paid 
to either. If the two Messrs. Browns have paid over any part 
of the public money to their teacher, they will lie personally an- 
swerable for it. The teachers have their remedies against those 
who have employed them ; and if their wages are not paid, they 
can be collected by a suit at law. It will be the duty of the 
trustees to call a meeting of the inhabitants on the receipt of 
this order, for the purpose of determining by vote, where a 
school shall be opened, so that the public money can be expend- 
ed before the first of January next. 

It is accordingly ordered, that neither of the schools which 
have been kept as aforesaid in district No. 12 are to be consider- 
ed as legally organized district schools, and that neither of the 
teachers be paid any portion of their wages out of the public mo- 
neys of said district. 

(anonymous.) 

Contracts by trustees of school districts for teachers' wages are binding on their 
successors in office. 

By John A. Dix. September 26, 1834. Contracts lor teachers' 
vv^ages, made by trustees of school districts, are binding on their 
succeessors. See 7th vol. Wendell's Reports, page 181. Trus- 
tees not in office are not, under the decision of the supreme court 
to which I have referred, personally answerable. 

If a judgment is recovered against the trustees in office the 
amount must be allowed in their official accounts. See 2 R. S, 
sec. 108, page 476. The 43d decision of the Superintendent of 
Common Schools, heretofore published with the school laws, re- 
quiring trustees of school districts to fulfil their own contracts, is 
intended for their government; and in all matters coming regu- 
larly before him the rule will be enforced, so far as it can be done 
without affecting the rights of third persons. 

The Trustees of school district No. 3 in the town of 
Ellicottville, ex parte. 

The personal property of a minister of the gospel is exempt from taxation; but 
if the value of his real es'ate exceeds $1,500 he may be taxed lor the excess. 

In this case a minister of the gospel, owning a large farm, 
claimed to be wholly exempt from taxation for school district 
purposes, and the opinion of the Superintendent was requested 
as to his liability. 

By John A. Dix, November 3, 1834. By subdivision 8 of 
section 4, 1st vol. Revised Statutes, the personal property of eve- 



192 



CASES DECIDED BY THE 



ry minister of the gospel, or priest of any denoiiiination, is exempt 
from taxation; and so is his real estate, when occupied by him. 
But the exemption as to the latter does not extend beyond the 
sum of f$l,500. If your clergyman is worth more than that 
sum, he may be taxed on the excess. Tiie law has settled this 
matter so clearly that no question can arise in relation to it, so 
far as the extent of the exemption is concerned. 

The Trustees of school district No. 1 in the town of 
Edwards, ex parte. 

Taxes must be collected in the mode prescribed by law. 

In this case a tax of $200 was voted to build a school-house, 
with the condition annexed that it should be paid in grain at th« 
end of a year. The trustees of the district entered into a con- 
tract with a builder, who agreed to erect the house and take his 
pay in the manner and at the time above mentioned. The year 
having expired, and the trustees being desirous of fulfilling their 
contract, undertook to provide the amount of grain stipulated to 
be delivered to him ; but several of the inhabitants refused to fur- 
nish their proportion. Under these circumstances the Superin- 
tendent was desired to state whetlier the tax could be collected 
in money or otherwise. 

By John A. Dix, Nove7nher 11, 1834. The proceedings of 
the meeting in your school district in October, 1833, at which a 
tax of $200 was voted to build a school-house, were not in con- 
formity to the provisions of the law, and cannot, therefore, be en- 
forced. When a tax is voted for school district purposes, the law 
indicates the mode in which it shall be assessed and collected; 
and no vote of the inhabitants, wdiich contravenes these provi- 
sions, is of binding force. A vote to pay a tax in grain at the 
end of a year is wholly unauthorized and void. The district is 
fairly indebted to the builder for the amount of the contract; and 
if the inhabitants do not pay him voluntarily, in the manner 
agreed on, a tax should be voted, at a special meeting to be call- 
ed for the purpose. This matter may be easily arranged among 
yourselves, if you are so disposed ; but if you cannot agree, and a 
recourse to legal measures, on the part of the builder, becomes ne- 
cessar}^, he must recover the amount justly due to him. 



SUPERINTENDENT OF COMMON SCHOOLS. 193 

The Trustees of school district No. 20 in the town 
of Boonville, ex parte. 

The ownership of the soil carries with it a right of property in permanent erec- 
tions on it: but if a school-house is built by subscription, on a site purchased 
by a district, a tax may be voted to purchase the house. 

In this case a school house was commenced by sutecription, 
on a lot to which a title was expected to be given by the owner. 
In consequence of some controversy among the parties the house 
was not finished; but at a subsequent period a tax of $70 was 
voted by the district to purchase the site and finish the house. 
The amount voted was raised and expended, and the lot on 
which the school-house was built was conveyed to the district. 
The question submitted to the Superintendent was whether a tax 
could be voted to reimburse those who had partially constructed 
the house, and whether such a measure would be equitable. 

By John A. Dix, November 10, 1834. The rule of law is 
that the right of property in all permanent erections upon land 
resides in the owner of the soil; and, therefore, the district having 
purchased the ground on which the school-house stands becomes 
the legal owner of the latter. Equitably, however, eacb of the 
j>arties who have contributed to its construction have an inte- 
rest in it commensurate with their respective contributions. It 
seems no more than just, if the district intends to appropriate the 
house to its own use, that it should pay a fair price for it. The 
inhabitants have a perfect right to vote a tax to purchase it; and 
the sum raised should be paid to those who have built it. Tlie 
tax should, of course, be levied on all the inhabitants, without re- 
gard to the fact that some had subscribed and others' had not; 
and as the amount collected would go to those who had paid 
their money for its construction they would in effect be reimbursed, 
and would, therefore, only contribute, to the extent of their respec- 
tive portions of the tax, to the purchase of the house. Thus 
would e([ual justice be done to all, and the district would pur- 
chase and pay for the house, as it ought to do. 

In some cases school districts have been formed with the un- 
derstanding that a sum is to be raised by subscription to pay for a 
school-house, and that the inhabitants are not to be taxed for the 
purpose. Such arrangements are almost always objectionable 
and rarely fail, soon or late, to produce dissention. But if there 
was such an understanding with you it ought to be executed 
in good faith; and the district should be deemed the owner of 
the school-house. But this should be the fruit of an amicable 
arrangement, as it is one of those cases in which the provisions 
of the law have not been followed in the first instance, and in 

13 



194 CASES DECIDED BY THE 

which the parties have acted upon a mere private understanding 
among" themselves. 

If no understanding whatever of the nature referred to existed 
the district should pay for the house. In this case a special 
meeting- of the inhabitants, for the purpose of laying a tax, may 
be called by the trustees. 

The Trustees of school district No. in the town 

of Antwerp, ex parte. 

Where improvements in real estate have been made and completed since the 
last assessment roll of the town was made out, the roll is not to be followed, 
so far as such real estate is concerned. 

In this case a tax was voted to build a school-house, and it 
appeared that improvements in several instances had been made 
in real estate by new erections between the time of completing 
the last assessment roll of the town and the time of voting the 
tax. One of the inhabitants had built a barn, which was com- 
pleted; another had commenced a tannery, and a third a dwel- 
ling-house, which, however, were unfinished. The question pre- 
sented was, whether the last assessment roll of the town shovild 
be followed in either or all these cases. 

By John A. Dix, December Q^ 1834. Where improvements 
liave been made in real estate in school districts since the com- 
pletion of the last assessment roll of the town, it is one of the ca- 
ses in which the value of the property cannot be ascertained by 
a reference to the assessment roll. If the property remains in 
the same condition, the trustees cannot vary the assessment be- 
cause they may think it too low. But if a new erection is made, 
and the property actually enhanced in value by an expenditure 
of money in such a manner that the improvement is capable of a 
distinct valuation, the trustees may give notice and assess the 
property at its increased value. But this should not be done 
where the improvement is not complete. The case of the barn 
I consider within the rule above laid down, but not so with the 
other improvements, which are incomplete. The reason of the 
distinction is obvious, as in one case the valuation of the subject 
matter may be reduced to certainty, and in the other it must de- 
rive its principal value from its completion, which is contingent 
and future. 



SUPERINTENDENT OF COMMON SCHOOLS. 195 

The Trustees of school district No. in the town 

of Otto, ex parte. 

A tax may be voted for two authorized objects, without specifying the amount 

to be raised for each. 
If a site is chosen for a school-house and the owner refuses to give a conveyance, 

a new one may be chosen by a majority of votes. 

A new school district was organized, and a site for the school- 
house chosen. A tax of $250 was then voted to build the school- 
house, pay for the site, and to furnish the school-house with a 
broom, a water pail and cup, a stove and a fire shovel, naming 
each object of expenditure in the resolution, but not naming a 
specific sum for each. On application to the owner of the land 
on which the site for the school-house had been fixed, he refused 
absolutely to make a conveyance or to allow the school-house to 
be built on the proposed site. The questions submitted were, 
whether the tax as voted was legal, and whether a new site 
could be fixed by a majority of votes. 

By .ToHN A. bix, December 8, 1834. I consider uil your 
proceedings legal. The articles voted to be purchased for your 
school-house were all appendages within the meaning of the law, 
and it was not necessary to vote a specific sum for each object. 
It was sufiicient to vote a specific ?um and enumerate the seve- 
ral objecte to which it was to be applied, provided the objects 
were all such as are enumerated in the section of the law which 
authorizes taxes to be raised in school districts. 

The change of site was also proper. The owner of the first 
site chosen having refused to give a conveyance, it was a failure 
to procure a title, which placed the district in precisely the same 
condition as though it had never chosen a site. A majority of 
votes was all that was necessary to change the position of the 
school-house. 

(anonymous.) 

A tax may be voted to repair a school-house, though the district has no title to 

the site. 

By John A. Dix, December 9, 1834. A district may vote 
a tax to repair the school-house, even though it has no title to 
the site ; but I consider it unwise to expend moi>ey on a school- 
house so situated, as the owner of the land may re-enter and the 
district may sustain loss as well as inconvenience. If, however, 
the inhabitants choose to repair the house under such circum- 
stances, they have an undoubted right to do so ; and a tax vot- 
ed for the purpose, in the usual manner, would be legal. 



196 CASES DECIDED BY THE 

The Commissioners of Common Schools of the town 
of Vienna, ex parte. 

Persons annexed to a new district with their consent, may be taxed for a school- 
house, though they may have paid a tax for the purpose within four years. 

When persons are annexed to a new district, without their consent, and are not 
liable to be taxed in it for a school-house, the portion of the value of the school- 
house in the district from which they are taken allowed to the new district on 
account of the taxable property of such persons, goes to tlie benefit of all th-e 
inhabitants. 

The facts of this case are fully stated in the Superintendent's 
opinion. 

By John A. Dix, December 9, 1834. Six individuals are 
taken from an old district to form a new one, all of whom have. 
contributed to tlie erection of a school-house within four years. 
Four consented to be set ot!" and two did not consent. The com- 
missioners of common schools in forming a new district, adjudge 
forty dollars to be paid to it from the old district, on account of 
the six persons thus set otf, the said sinn being the proper pro- 
portion of the value of the property of the old district, according 
to the taxable property of the six individuals set oft'. The four 
persons who consented to be set off are liable to be taxed for a 
school-house in the new district. The two who were set oft' 
without their consent, having paid a tax for building a school- 
house in another district within four years, cannot be taxed. 

The question submitted is, whether the four persons who are 
liable to be taxed are entitled to have the whole sum of forty dol- 
lars applied to the reduction of tlieir taxes, (if their taxes for 
building a school-house in the new district amount to so much,) 
or whether only so much of the forty dollars as was apportioned 
to the new district upon the basis of the taxable property of the 
tour persons referred to is to be applied to the reduction of their 
taxes for a school-house. 

The language of the law" may seem to favor the former con- 
struction, but the equity is plain; and without doing violence to 
the terms of the several sections applicable to the case, I have 
no hesitation in giving to it a construction which shall be consis- 
tent with equity. It was certainly not the intention of the law, 
that any individual set to a new district should be benefitted by 
the amount of the property of the old district awarded to the new 
beyond his own pi oportion of such property. Each person, who 
is set from an old district having a school house or other property 
to a new district, may be said to carry into the latter his propor- 
tion of the value of such school-house or property, and he is to 
have the benefit of it to the amount of his tax for a school-house in 
the new district. But he cannot have the exclusive benefit of that 
portion of the value of the school-house or property in the old dis- 



SUPERINTENDENT OF COMMON SCHOOLS. 197 

trict, which is awarded to the new district as the proportion of 
Other persons. If the latter are not, from peculiar circumstances, 
liable to be taxed for a .school-hoase, their proportion goes to the 
redaction of the whole tax for a school-house, and enures to the 
benefit of all the inhabitants of the new district. In this bene- 
fit the individual first referred to participates equally with all 
others, but no farther. If he were to be allowed, by way of re- 
ducing his tax, any thing more than was received from the old 
district on his account, he would acquire a benefit to which he 
has no more claim than any other Inhabitant of the district, and 
have an advantage over others which could not be recognized 
without a subversion of that plain rule of equal justice, which 
it is the intention of the law to maintain inviolate. 

I therefore, decide that the four persons who consented to be an- 
nexed to the new district, are to have so much of the forty dollars 
applied to the reduction of their taxes respectively, as was award- 
ed to the new distiict upon the taxable property of each: and 
that so much of the forty dollars as was awarded to the new dis- 
trict on account of the two persons, who did not consent to be 
set oflf, is to he applied to the reduction of the whole tax voted 
for a school-house, so that all who are to pay the tax may have 
the benefit of it.* 

The Inhabitants of joint school district No. 13 in the 
towns of Rome and Lee, against the Commission- 
ers of Common Schools of said towns. 

If a school district has been recognized as legal for a length of time, regularity 
in its organization will be presumed in the absence of the proper record, and 
the commissioners of common schools cannot form the district anew and order 
an election of officers under such circumstances. 

The facts of this case are stated in the Superintendent's o^- 
der. 

By John A. Dix, December 13, 1834. On the first day of 
October last the annual meeting was held in joint school district 
No. 13, in the towns of Rome and Lee, and officers were chosen 
for the ensuing year. To the regularity of the proceedings, ex- 
ceptions were taken, and an appeal was presented to the com- 
missioners of common schools of the two towns, who met and 
decided that they had no power to entertain the appeal. On ex- 
amination of the records of the towns, it appeared that district 
No. 13 was not recorded, with a proper designation of bounda- 
ries, in either; whereupon the commissioners proceeded on the 



• See the case of the trustees of school district No. 13 in the town of Cas- 
tile, page 64. 



i^O CASES DECIDED BY THE 

first day of November^ (that day having been previously appoint- 
ed for tlie purpose,) to form a new district by making additions 
to the district in question, and by making a specification of its 
boundaries. The district vsms then pot on record in both towns, 
and a meeting was called in pursuance of the provisions of sec- 
tion 55, page 477, 1 R. S. to choose district officers. The meet- 
ing was held on the 12th of November, and district officers were 
chosen. To this proceeding exception is taken by the officers 
elected at the annual meeting on the 1st of October. 

By an examination of the reports made by the commissioners 
of common schools of the towns of Rome and Lee, in the office 
of the Superintendent, it appears that joint district No. 13 has 
been regularly returned by the commissioners of those towns since 
the year 1822 as an organized district, lying partly in both towns, 
and that the public money has been apportioned to it according 
to law. A recognition of the district for so long a period, cannot 
with propriety be disregarded in consequence of a faikire on the 
part of the proper officers to have it recorded. It was the duty 
of the commissioners, on being apprized of the fact, to meet to- 
gether arul declare the boundaries with a view to have them 
made a matter of record : but it cannot be admitted for a mo- 
ment, that the omission of the proper officers to comply with 
provisions of law, wdiich are merely directory, is to vacate pro- 
ceedings regularly conducted by the competent authority. It is 
true it does not appear, by the records, that the district was ever 
regularl}^ organized in the manner piescribed by law ; but not- 
withstanding the statement given by the commissioners with re- 
gard to certain proceedings in both towns in seiting off a part of 
each to the other, the Superintendent cannot now permit tlie 
original formation of the district to be enquired into for the pur- 
pose of invalidating any thing that has been done within it 
since its organization. After the lapse of twelve years, during 
which the district has been returned b}?- the commissioners of 
both towns to the Superintendent of common schools, and has 
complied with the directions of the statute so as to become en- 
titled to the public money, regularity in its organization will be 
presumed; and the commissioners will be so far bound by the re- 
ports of their predecessors that they will not be allowed to impeach 
the accuracy of those reports. It has been repeatedly decided 
that a district, which has been for a series of years recognized 
as valid, is to be regarded as such, although no record of it caa 
be found ; and in such cases the commissioners have been direct- 
ed, whenever the interposition of the Superintendent of Com- 
mon Schools has been required, to meet and declare the boun- 
daries of the district, and put them on record. In this case the 
commissioners have overstepped the limits of their authority, by 



SUPERINTENDENT OF COMMON SCHOOLS. 199 

treating the district as null, and ordering an election after form- 
ing it anew. They had power to annul the district ; but with- 
out doing so in a formal manner, it could not be reorganized and 
treated as a new district. They could not give the notice pro- 
vided for in section 55 before referred to, because it was not a 
new district ; nor could they issue a notice under the provisions 
of section 57, (same page) because neither of the contingencies, 
on which the right to issue such a notice is dependent, had oc- 
curred. It is alleged that several of the appellants, who were 
the officers chosen on the 1st of October, were present and ac- 
quiesced in the proceedings of the commissioners. Admitting 
the fact, the difficulty still remains. There was a want of juris- 
diction, so far as the order for a new election is concerned, and 
their consent could not give jurisdiction. They might have re- 
signed, but could not by their consent give validity to any act on 
the part of the commissioners, not authorized by express provi- 
sions of law, which would abridge the period of their election 
to office. Notwithstanding the error of the commissioners, the 
Superintendent is well satisfied that they intended to act for the 
best good of the district, and without any doubt as to the extent 
of their powers. 

It is hereby ordered, that so much of the proceedings of the 
commissioners aforesaid on the first of November last, as relates 
to the boundaries of district No. 13 in Rome and Lee, be con- 
firmed, and that said boundaries be continued as established by 
them on that day. And it is hereby declared, that the proceed- 
ings of the meeting in said district on the 12th of November, 
held in pursuance of the order of the commissioners, are null 
and void ; and that the persons chosen on the 1st of October last 
are and will continue to be the officers of said district until the 
next annual meeting, or until vacancies occur. 

(anonymous.) 

Certificates of qualification to teach a particular school cannot be given. 

By John A. Dix, December 26, 1834. Inspectors of common 
schools have no right, in giving a teacher a certificate of qualifi- 
cation, to be governed by a consideration of the particular circum- 
stances for which it is wanted. The certificate is good for one year 
to teach any school in the town, unless it is previously revoked ; 
and it would certainly be not only a very inconvenient, but a 
very erroneous, practice to give a certificate to a teacher to enable 
hiia to receive the public money for teaching one school and to 
revoke it if he undertook to teach another. The law makes no 
distinction, and the inspectors should not. They must be " sa- 
tisfied" as to "the qualifications of the candidate in respect to 



200 CASES DECIDED BY THE 

moral character, learning and ability," not to teach a particular 
school, but "for teaching common schools" in their town. 

The Trustees of school district No. 6 in the town of 
Rensselaerville, ex parte. 

If a teacher is examined and the inspectors are satisfied, but neglect to give a 
certificate at the time, it may be given at a subsequent time and take effect 
from the date of the examination. 

In this case the commissioners of common schools examined 
a female teacher and expressed their satisfaction with her quali- 
fications, but neglected to give her a certificate at the time. On 
application to them at a subsequent period of her term, the certi- 
ficate was given to her. The question presented was, whether 
slie was to be deemed a qualified teacher from the time of the 
examination or from the date of her certificate. 

By John A. Dix, January 6, 1835. The teacher in your 
district should have received a certificate of qualification at the 
time she was examined ; but if the certificate which she received 
was given upon the strength of the examination in the spring, she 
ought to be considered a quahfied teacher from the date of such 
examination. The omission of the inspectors to give her a cer- 
tificate at the time, if they were satisfied with her qualifications, 
should not be allowed to operate to her prejudice. 

(anonymous.) 

"Hie site of a school-house, if actually owned by the district, is a part of its pro- 
perty, subject to appraisement when a new district is formed. 

By John A. Dis, January 6, 1835. The value of the lot 
on which a school-house stands, or, as it is usually termed, the 
site of the school-house, is to be considered as a part of the pro- 
perty of the district, subject to appraisement under section 67 of 
the act relating to common schools, if the district is divided and a 
new one formed from part of it. It is to be understood, however, 
tliat the site must be the absolute property of the district, and not, 
as often happens, occupied at suflerance, or on condition of being 
used as a site for a school-house. 

(anonymous.) 

The assessment roll of the town is not complete until it is signed and certii\ed. 

By John A. Dix, January 12, 1835. The assessment roll 
of the town is not complete, and cannot, therefore, be considered 
ae the "last assessment roll of the town," until after it is signed 



SUPERINTENDENT OF COMMON SCHOOLS. 201 

aiid certified as required by section 26, title 2, of the act for the 
assessment and collection of taxes.* 

The President and Directors of the Bank of Orleans, 
against the trustees of school district No. 1 in the 
town of Barre. 

There can be no partnership in the erection of a district school-house. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, January 12, 183.5. The Superintendent 
of common schools has examined the statement of facts agreed 
on by the trustees of school district No. 1 in the town of Barre, 
and the president and directors of the Bank of Orleans, in rela- 
tion to the assessment of a tax on the property of said district for 
the purpose of erecting a school-house. 

The proposed school-house is intended to be part of a building 
to be used as an academy as well as a school-house, and the sum 
of $2,000 is intended to be raised by subscription to complete it. 

Much as the Superintendent is disposed to confirm the pro- 
ceedings of the inhabitants of the district, by whom they have 
been adopted with great unanimity, he is constrained to set them 
aside by a rule, which cannot, in his opinion, be safely departed 
from in any case, without authority from the legislature. By a 
decision of the Superintendent heretofore published with the 
school laws, it is settled that there can be no partnership in the 
erection of a school-house which will prevent the district from 
controlling it entirely for the objects of the district school. This 
principle he feels bound to enforce in all cases which come before 
him. To sanction a departure from it would establish a prece- 
dent which might lead to great embarrassment and possibly to 
abuse. If in any case the interest of a district should require 
such an arrangement as is contemplated by the inhabitants of 
this district, application must be made to the legislature for the 
proper authority. 

The Superintendent deems it proper to add, that he should 
have confirmed the tax but for the single fact that the school- 
house is proposed to be united with an academy. The wealth 
of the district justifies the amount of the proposed expenditure ; 
and it is no objection, in his mind, that a large proportion of the 
tax falls on a moneyed institution, which not only has the ability 
but the directors of which express a willingness to contribute to 
the erection of a school-house for the district. 

* For the habiUties of trustees in deviating from the last assessment roll of th« 
♦own in assessing a tax, see the decision of the Superintendent of December 
I, 1835, in the case of the trustees of school district No. 5 in the town of Catlin. 



202 CASES DECIDED BY THE 

It is hereby ordered, that so much of the proceedings of the 
special meeting in school district No. 1, on the 23d December 
last, as authorizes a tax of fifteen hundred dollars to be levied, 
with a view, as is admitted, to be applied to the erection of a 
building for a school-house and academy, in pursuance of a re- 
solution passed at a meeting of said district on the 7th October 
last, be and it is hereby set aside. This decision is not intended 
to affect the right of the inhabitants of said district, by virtue of 
the certificate of the commissioners of common schools heretofore 
given, to meet again and vote the same amount for the purpose 
of erecting a building to be used solely as a district school-house. 

The Trustees and inhabitants of school district No. 
20 in the town of Bethlehem,' ex parte. 

The annual election in a school district having been neglected for two years, the 
Superintendent will order one to be held. 

This was an application to the Superintendent by the inha- 
bitants of school district No. 20 in the town of Bethlehem, to or- 
der an election of district officers, the annual meeting having 
been omitted for two successive years. In this application the 
trustees last elected united. 

By John A. Dix, January 14, 1835. The annual meeting 
for the election of oflicers in school district No. 20 in the town of 
Bethlehem having been neglected for two successive years, and 
application having been made to the Superintendent of Common 
Schools for his direction: It is hereby ordered, that the trustees 
now serving, viz. G. H. Birch, John P. Brayton and Bretton 
Udell do proceed to call, at the earliest practicable day, a meet- 
ing of the taxable inhabitants of said district No. 20, at some 
convenient place therein, for the purpose of electing officers for 
said district for the ensuing year, and for the transaction of such 
other business as the inhabitants, when so assembled, may deem 
necessary. The notice will set forth the objects of the meeting, 
and state that it is called by authority of the Superintendent of 
Common Schools ; and it will be served in the manner requir- 
ed by law when special meetings are called by the trustees. 
After the election of district officers the time and place for hold- 
ing the next annual meeting wiU be fixed by vote of the inha- 
bitants assembled in pursuance of tlie notice so to be given. 



SUPERINTENDENT OF COMMON SCHOOLS. 203 

The Trustees of school district No. 1 in the town of 
Castile, ex parte. 

No more money can be expended on a school-house than is necessary for com- 
mon school purposes. 

The school-house in district No. 1 in the town of Castile 
having been consumed by fire, it was proposed by some of the 
inhabitants to build a house large enough for the purposes of the 
district school, with one or two additional rooms to be rented for 
select schools or such other purpose as might be acceptable to the 
district. The question presented was whether a tax to construct 
siuch a building could be legally voted. 

By John A. Dix, January 15, 1835. The inhabitants of 
school districts have no right to lay a tax for any amount to be 
expended on a school-house, excepting what is absolutely neces- 
sary for common school purposes. They may have a house 
with two or more rooms, if such a one is necessary, for the con- 
venience of the district. But the idea of having a room to rent, 
even for a select school, is wholly inadmissible. 

Edmund Baldwin, Jr. and others, against the inha- 
bitants of school district No. 11 in the town of 
Lawrence. 

If a school district is broken up, the persons belonging to it are liable to be taxed 
for a school-house in the districts to which they are annexed, though they 
may have paid a tax for the same purpose within four years. 

Notices for special meetings must be personally served. 

The principal facts of this case are stated in the Superinten- 
dent's order. The only material point not fully set forth in his 
order is the ground on which the appellants reUed in claiming 
an exemption from a tax for building a school-house in district 
No. 11 after the dissolution of the district to which they belong- 
ed, and their transfer to the former. This point was in sub- 
stance that they were set off from the other district without their 
(X)nsent, and that having paid a tax in it for a school-house with- 
in four years, they were not liable to be taxed for the same pur- 
jjose in district No. 11. 

By John A. Dix, January 17, 1835. This is an appeal by 
Edmund Baldwin, junior, and others, from the proceedings of a 
district meeting held on the tenth day of December last, in school 
district No. 11 in the town of Lawrence, at which meeting a 
tax of $318-50 was laid for building a school-house, (fee; and 
also from the proceedings of the trustees of said district, in as- 
sessing the appellants for their portion of said tax. 

The principal grounds on which exception is taken to the {m-o- 
ceedings before mentioned are the following: 



204 CASES DECIDED BY THE 

1st. That the appellants have, within four years, paid a tax 
towards building a school-house in another district, from which 
they were set off without their consent; and, 

2d. That the meeting on the 10th of Dec. ult. was not call- 
ed in pursuance of the notice required by law. 

The last exception is well taken, and the proceedings must be 
set aside on this ground. In caUing meetings for special objects 
the trustees of school districts should pursue the directions of the 
statute strictly. This observation applies most emphatically 
to cases in which the object of the meeting is to impose a tax. 
The notice should properly specify the object of the meeting; but 
it is indispensable that it should be personally served, as is re- 
quired by sub. 2, of sec. 74, and by sec. 56 of the act relating to- 
common schools. The notice for the meeting on the tenth Dec. 
was in proper form, as appears by the affidavit of the clerk, but 
instead of being served on each taxable inhabitant, it was mere- 
ly posted up as in the case of an annual meeting or a meeting ad- 
journed for a longer time than one month. The notice was not 
sufficient, no attempt having been made to give it in the man- 
ner required bylaw; and a new meeting must be called, and 
the tax voted again before it can be collected. 

The case being thus disposed of, it is unnecessary, for the pur- 
poses of this decision, to consider the first ground of objection. 
But to avoid future embarrassment it is proper to say that the 
Superintendent deems it wholly untenable, if, as is alleged, the 
appellants became inhabitants of district No. 11 by virtue of the 
dissolution of district No. 8 under an order of the commissioners 
of common schools. The provision of law which exempts from 
tlie payment of a tax for building a school-house individuals 
who have, within four years, paid a tax for the same purpose in 
another district, from which they have been set off without their 
consent, is not applicable to cases in which a district is wholly 
broken up, and the inhabitants who composed it are arranged 
to others. The intention of that provision was to provide an ex- 
emption where a persoii is taken from a district which continues 
in existence after he is annexed to another, and not where he is, 
from the necessity of the case, attached to another, because the 
district to which he belonged is dissolved. The appellants are, 
therefore, hable to be taxed for building a school-house in district 
No. 11, inasmuch as they became inhabitants of that district by 
virtue of the dissolution of district No. 8. 

It is hereby ordered, that the proceedings of the meeting held 
on the tenth of December last, in district No. 11, be, and thej 
are hereby annulled. 



superintendent of common schools. 205 

(anonymous.)* 

If a teacher ia engaged at a given sum per month, and the public money is paid 

to him, it is to be in part payment of his wages. 
The tuition of indigent pupils cannot be paid out of the public money. 
There is but one legal mode of paying teachers. 

Two questions were submitted to the Superintendent for his 
opinion. They are given as presented to him, and his answers 
are annexed. 

By John A. Dix, January 17, 1835. Question 1. If a 
teacher is engaged by the trustees of a district at a certain sum 
j>er month, does he receive the pubhc money in part pay, or is 
lie entitled to it exclusive of his wages ']■ 

Answer. He is to receive the pubUc money in part payment 
of his wages. If he were to receive it exclusive of the sum agreed 
on as his monthly wages, he would be paid more than the trus- 
tees are bound to give him, and it would be a fraud upon the 
district. 

Question 2. If he (the teacher) takes charge of any district 
school at a fixed price per scholar, (say two dollars,) have the 
trustees the power of distributing the balance of the public mo- 
ney (after paying him the full price for poor pupils,) among those 
who send children to school ; or. has the teacher a right to de- 
mand the residue without distribution, after having been paid 
the full price for all the poor pupils who have attended through 
the quarter ? 

Answer. Trustees have no right to make a direct payment of 
the tuition of poor pupils out of the public money, or to make any 
formal distribution of the public money for the benefit of the 
children attending a school. The law is clear and explicit on 
all these points, and if it is followed, no embarrassment or diffi- 
culty can possibly arise. Let us see what the law requires. 

1. The trustees are to pay the wages of the teacher (he being 
duly qualified,) "out of the moneys which shall come into their 
hands from the commissioners of common schools, so far as such 
moneys shall be sufficient for that purpose." 

2. " To exempt from the payment of the wages of teachers 
such indigent persons within the district as they shall think pro- 
per." 

3. To collect the residue of the teacher's wages, after paying 
him the public money, " excepting such sums as may have been 
collected by the teachers, from all persons liable therefor." 

These are the three steps authorized by law, and they are 
above stated in the order in which they should be taken. 

Let us look at the practical effect of these provisions by sup- 
posing a case and applying them to it. A teacher may be hired 
by the trustees at so much per month or at so much per scholar. 



206 GASES DECIDED BY THE 

The only difference is, that, the amount of his compensation is, 
in one case, reduced to certainty, and in the other, it is contingent 
on the number of scholars. Either may or may not be most ad- 
vantageous to those who pay, according to circumstances. The 
first mode is the most simple, and is, tlierefore, preferable. Let 
us suppose the last case. 

A teacher is hired to instruct a school at two dollars per scho- 
lar for the term. He has forty scholars, of whom five are the 
children of indigent parents. He is entitled at the close of t}»e 
term to $80, and the trustees have on hand $20 of public mo- 
ney apphcable to the term. Now, what is the duty of the trus- 
tees? It is very plain. 

1. They pay him the public money, $20. 

2. They exempt the parents of the five indigent children. 

3. They make out a rate bill for $60 with the collector's fees 
(five per cent) added thereto, assessing each of the parents of the 
thirty-five scholars with his just proportion of the amount accord- 
ing to the number of his children who have been instructed and 
to the time during which they have received instruction. 

This is the only mode of proceeding recognized by law, and 
it must be strictly followed. Whether the teacher is engaged at 
so much per month or so much per scholar makes no difference. 
These are different modesof ascertaining the amount of his com- 
pensation. In the first case it is ascertained at the beginning, 
and in the second at the close, of his term. 

The Trustees of school district No. in the town 

of White Creek, ex parte. 

Teacher's board bills cannot be included in a rate bill, or paid out of the public 

money. 

In this case the teacher was boarded by one of the trustees of 
the district, and in making out a rale bill for his wages his board 
bill w^as included in it, the inhabitants having agreed to provide 
his board. 

By John A. Dix, January 19, 1S3.5. Board bills for teach- 
ers cannot be allowed to be connected in any manner with the 
payment of their wages. The whole thing is wrong and unau- 
thorized by law. Their board must be paid by themselves, or 
by the inhabitants by subscription. It cannot be paid out of the 
public money, or included in a rate bill. There is no safety but 
in a strict adherence to the course pointed out by law. Whether 
the particular mode of payment is the same in the end or not tx> 
the inhabitants of the district, is not the question. The impor- 
tant point is, whether the trustees have proceeded according to 
law. They have not, and they should make some prompt ar- 



SUPERINTENDENT OF COMMON SCHOOLS. 207 

rangeraent of the matter for the satisfaction of the parties con- 
cerned. Trustees have no more right to inchrde a teacher's 
board bill, or any part of it, in a rate bill, than they have to in- 
clude it in a bill for a pair of shoes or any other article for his 
personal use. 

The Trustees of school district No. in the town 

of Locke, ex parte. 

Non-residents are taxable forfuel if they own improved lands in the district. 

The following question was proposed for the opinion of the 
Superintendent. 

At a district meeting a tax is voted to procure fire wood for the 
school, and for the purpose of making some necessary repairs in 
the school-house. The tax is assessed. A, B and C live in an 
adjoining district, but each own land, which they themselves im- 
prove, within this district, and which is not taxable in the dis- 
trict where they live. Their land is taxed, and they decline pay- 
ing the tax on the ground that they can not be legally taxed for 
fire wood; the tax is quite inconsiderable. Is it a legal tax? 

By John A. Dix, January 19, 1835. Answer. The tax 
is legal and may be collected. A tax for repairing a school- 
house or for fire vi^ood, where fuel is not furnished in kind, is im- 
posed in the same manner as a tax for building a school-house. 
Non-residents may be included in the tax hst in either case if they 
have lands in the district cleared and cultivated, which are not 
taxable in another district. 

The Trustees of school district No. 1 in the town of 
Castile, ex parte. 

If two teachers are employed at the same time, the rate bill for their wages must 
be gradtiated by the number of days of attendance, without reference to the 
studies or branches in which different children may have been instructed. 

Scholars may be divided and put in different rooms. 

The Superintendent having decided on a question presented 
from this district, (see ante page 203,) that a school-house should 
not be made larger than necessary for common school purposes, 
he was desired to state whether a school could be divided inu) 
departments, and different rates of tuition charged for different 
branches of instruction. 

By John A. Dix, January 2"^, 1835. I have already said 
that a school district may levy such a tax as is necessary for con- 
structing a building suited to the purposes of the district, and no 
more. The amount of the tax is, of course, subject to the le- 
gal hmitation of $400, unless the commissioners of common 



208 CASES DECIDED BY THE 

schools certify a larger sum to be required. Whether the build- 
ing shall have three rooms or one, or whether it shall have two 
stories or one, is a matter for the determination of the inhabi- 
tants. 

If two or more teachers are employed in a school district, the 
amount of compensation, which each shall receive, may be re- 
gulated by agreement in the manner best suited, in the opinion 
of the trustees, to the interest of the district. But the inhabi- 
tants cannot be required to pay different rates of tuition accord- 
ing to the branches of study in which their children are instruct- 
ed. The law has settled the rate of contribution for the pay- 
ment of teachers' wages. It must be according to the number 
of days, during which each person has sent to school. A man- 
who sends two children to school for thirty days, will pay precise, 
ly as much again as a man, who has sent only one child to school 
for thirty days. A rate bill made out on any other principle 
would be illegal and could not be collected. It is manifest, 
therefore, that any distinction as to the rate of tuition to be paid 
in different departments of your proposed school is whollj inad- 
missible. 

I see no objection to dividing the scholars and putting them 
in different rooms under separate instructors. This is in effect 
a division into classes for study and recitation. Every child in 
the district would have an equal right to be instructed in either 
and all of the departments. The only principle on which the 
division can be made, is the proficiency of the pupils in the stu- 
dies respectively pursued in each. Let these matters be tho- 
roughly understood, and I apprehend no difficulty, if your ar- 
rangements are commenced with the general concurrence of the 
inhabitants.* 

The Commissioners of Common Schools of the town 
of Madison, ex parte.. 

The children of laborers temporarily employed on canals are not to be included 
in school district reports. 

This was an application to the Superintendent for his opinion 
as to the propriety of including in the annual reports of school 
districts the children of such laborers on the Chenango canal £us 
were actually at work in the districts on the last day of Decem- 
ber, 1834. 

By John A. Dix, January 24. 1835. I have received your 

* See the cases of Zeno Allen and others against the trustees of school No, 
1 in the town of Hounsfield, page 4, and a decision by A. 0. Flagg on the 16tl» 
July 1829, page 48. 



SUPERINTENDENT OF COMMON SCHOOLS. 209 

letter stating that you understand the trustees of one or more 
school districts in your town are about to inckide in their annual 
rc}X)rts the children Of laborers on the Chenango canal. 

I am of opinion that these persons have not such a fixed resi- 
dence, as the law intends, to justify the enumeration of their 
ohildien among those residing in the district on the last day of 
December. School districts are formed with a view to the accom- 
modation of the inhabitants residing permanently within them, 
and with a regard to the number of children who may be conven- 
iently instructed in the schools. The arrangements of the inhabi- 
tants are made in conformity to the actual condition of the districts, 
or possibly, with reference to such increase as in the ordinary 
progress of settlemen( may be reasonably anticipated. If the 
children of persons coming in large numbers to sojourn tempo- 
rarily in the district for the purpose of constructing roads or ca- 
nals leading through it, are to be deemed residents, they would 
have a privilege in the schools which might become so crowded 
iis to prejudice seriously the interests of the permanent inhabi- 
tants, and might, indeed, for ail practical purposes, work a dis- 
organization of the district for the time being. A construction of 
tiie law which leads to such consequences, would certainly not 
consist with its intention, and under any view of the subject it 
seems to me that the children of the persons referred to cannot be 
regarded as coming within the provision, under which thean- 
iiual enumeiation is made. 

Should the trustees of any of the school districts include the 
children of laborers on the Chenango canal in their reports, it 
will be your duty to see that the proper deduction is made. I 
can readily conceive that a difference of opinion may exist with 
regard to the propriety of inckiding them; and therefore I would 
suggest that the trustees of the districts to which you refer should 
be innnediately advised of my construction of the law, in order 
that their reports may be made out in conformity with it. 

A. G. H. a teacher, against the Inspectors of com- 
mon schools of the town of Petersburgh. 

Inspectors are inexcusable for giving incompetent teachers certificates of quali- 
fication. 

The facts of this case appear by the Superintendent's order. 

By John A. Dix, January 24, 1835. The Supetintendent 
of Common Schools has had under consideration the appeal of 
A. G. H. from a decision of the inspectors of common schools of 
the town of Petersburgh in the county of Rensselaer, in refusing 
to grant him a certificate of qualification after having examined 
him as a candidate for teaching a school in said town. 

14 



^lyj CASES DECIDED BY THE 

On the 17th inst. the Superintendent addressed a lett«i to the 
above mentioned inspectors, calling on them for «J*cir reasons in re- 
fusing Mr. H. a certificate. This coniPi«nfcation was made upoRi 
an examination of two certificat®«of qualification from the inspec- 
tors of the towns of Hoosici^and Sand-Lake^ and without a close 
inspection of Mr. H'3. fetter of appeal, in which the certificates^ 
were enclosed. The Superintendent having received a state- 
ment froixv the inspectors of Petersburgh, and having carefully 
examined all the papers submitted to him,^ is of opinion that they 
were perfectly right in withholding a certificate of qualification. 
Without any reference to the errors which the inspectors allege- 
were made by Mr. H. in parsing a plain sentence,, the Superinteii- 
dent perceives that the word please is three times spelt " pleas'* 
in his letter of appeal, and that the appeal is addressed to thc 
" Superintender" of Common Schools. An individual who is so' 
plainly Ignorant of the English language is surely unfit to be- 
charged with the management of a school; and the S-uperinten- 
dent is at a loss to conceive how the inspectors of Hoosick anc^ 
Sand-Lake could have granted him a certificate of qualifica- 
tion. The state has provided Uberalty for the support of the 
system of common school education; but if the officers, wbc^ 
are entrusted by law with the examination of teachers, will nos 
consider it their duty to exclude from the direction of the schools- 
individuals wholly incompetent to give instmction in the most 
simple blanches, the public bounty will not only be expended in 
vain, but it will be made instrumental to a misdirection of the 
intellectual faculties. It is a subject of genei-al complaint that 
the standard of quahfieation for teachers in the common schools 
is extremely low; and this evil must continue to exist, if the in- 
spectors, on whose (fccisions the standard ia a great measure de- 
pends, will not perform their duty rigidly and with proper finrv- 
ness. All that the state exacts is. ihat a school shall be kepf 
thiee months per annum in each district by a teacher properly 
qualified. The requisition is by no means unreasonable, and 
the inspectors should consider it a solemn duty, not only to with- 
hold a certificate when the individual is not fully competent to 
teach, but to institute a rigid scrutiny into the qualifications of 
all who present themselves as candidates for examination as 
teachers. The Superintendent is willing to believe that in thi'^ 
case the inspectors of Hoosick and Sand-Lake have granted Mr. 
H. a certificate on a very superficial examination. He trusts, 
however, that a similar case will not again occur, but that they 
will consider it due to themselves to withhold certificates, except- 
ing where they are satisfied, from careful examination, that the 
{Mopriety of granting them is in no danger of being impeached 
and their decisions brought into disrepute by the unvvorthiness of 



SUPERINTENDENT OF COMMON SCHOOLS. 211 

those in whose favor they are made. It is due to Mr. H. to state 
that his moral character is not called in question. The only 
ground of objection to him is his want of the necessary learning 
and ability to teach a school. 

The Trustees of school district No. 8 in the city of 
Albany, ex parte. 

Evening schools may be kept in school districts in Albany, under certain reatric ■ 

tions. 

By John A. Dix, Jayiuary 30, 1835. A question having 
eirisen in school district No. 8 in the city of Albany, with regard 
to the propriety of enumerating, under section 11 of the act of 
17th April, 1830, relating to common schools in said city, chil- 
dren who have attended an evening school kept in said district 
under the direction of the trustees for the instruction of appren- 
tices and others, who are obliged to lalwr during the day, and 
who would, if such enunseration were not admissible, be wholly 
excluded from a participation in the benefit of the common school 
f«nd : 

The Superintendent of common schools is of opinion that the 
attendance of the pupils in such evening school maybe included 
in the account kept by the teacher pursuant to the provisions of 
the section and act above referred to: Provided, 1st. That such 
evening school shall have been kept under the direction of the 
trustees, and put in all respects on the same footing as the day 
schooL 2d. That no pupil attending said evening school shall 
have been included in the account of those v/ho attend the day 
school: and, 3d. That said school shall have been kept €ach 
evening as many hours as shall make each school time equal 
iu duration to the avejage length of the school time of the day 
schooL 

C. W. M. a teacher in school district No. 1 in the 
town of Turin, ex parte. 

If a teacher's certificate is annulled, the trustees may dismiss him. 

C W. M. was employed by the trustees of school district No. 
1 in the town of Turin, to teach the district school four months. 
At the time he was so employed, he held a certificate of qualifi- 
cation from the inspectors of common schools of the town. At 
the expiration of three months the inspectors annulled his certifi- 
cate, and the trustees dismissed him. The question submitted 
was, whether they could dismiss him before the expiration of the 
time for which he was engaged. 

By John A. Dix, January 31, 1835- I am of opinion thai 



212 CASES DECIDED BY THE 

the act of annulling a certificate of qualification by the inspectors of 
oomraon schools releases the trustees of a school district from all 
obligation to continue in employment the teacher whose certifi- 
cate is so annulled. If the trustees have entered into a contract 
with him for a specific term, and his certificate is in the mean 
time annulled as the law provides, the trustees are, in my opinion, 
at liberty to rescind the contract. They engaged him as a qua- 
lified teacher, and the moment he ceased to be so there was a 
failure of the consideration, which was at the foundation of their 
contract with him. If the trustees allow him to teach the school 
after notice from the commissioners that they have annulled his 
certificate, it is a continuance of tlje contract, and they will not, at 
a subsequent period, be allowed to dispute it. But I think they 
may dismiss him for the reason assigned. Otherwise a district 
might forfeit its right to a share of the public money for want of 
the requisite period of instruction by a qualified teacher. In this 
construction of the law there is no hardship, as the teacher enters 
into the contract with full knowledge of his liabilities. 

The Trustees of school district No. 2 in the town of 
Summit, ex parte. 

Persons set off from a school district without the consept of the trustees do not 
cease to belong to it until three months after notice in writing to the trustees. 

A collector has thirty days from the delivery af a tax list and warrant to collect 
a tax. 

On the 7th Nov. 1834 the commissioners of common schools 
of the town of Summit, served on the trustees of school district 
No. 2 in said town, a notice that they had set off five inhabi- 
tants at their request, to district No. 1. On the 3 1st Dec. ensu- 
ing a tax of $130 was voted to build a new school-house. The 
question proposed was, whether the persons thus set off from 
district No, 2, the trustees not having consented to the alteration, 
were liable to pay their proportion of the tax. 

By John A. Dix, January 6, 1835. An alteration in a 
school district does not take effect unless the trwstees consent, 
until three months after notice to them. The three persons set 
off from your district will therefore continue to be inhabitants of 
the district until three months from the day on which one of the 
trustees had notice in vt^riting of the alteration. Until the three 
months have fully expired, they are to be treated in all respects 
as inhabitants of the district : their children are to be enume- 
o^ted in it, and they must pay their proportion of all taxes asseas- 
ed on the district in the mean time. 

The tax voted on the last of December to build a school-house 
wasj I supposcj assessed as required by law within one month 



SUPERINTENDENT OF COMMON SCHOOLS. 213 

after the vote taken ; but the collector has thirty days from the 
delivery of the tax list and warrant to him to make the col- 
lection. If the tax list is made out according to law, and the 
three persons are included in it before the time when they will 
become inhabitants of the district to which they are set off, they 
are bound to pay the tax. All tax-lists are to include the name 
of every taxable inhabitant residing in the district at the time 
they are made out. This settles the whole question of liabi- 
lity. 

The Inspectors of common schools of the town of 
Otsego, ex parte. 

ii the annual report of a school district includes part of two years, it is a false 

report. 
The wages of a teacher not qualified according to law may be collected by a rate 

bill, but he cannot receive the public liioney. 
If trustees pay public money to a teacher not qualified, they may be prosecuted 

for the amount as for a balance in their handff. 

By John A. Dix, February 23, 1835. The inquiries con- 
tained in your letter aTe given below at length, and the answers 
required of me annexed. 

1st. A. B. and C, trustees of school district No. in the 

town of , employ D. to teach their school from November 

1st, 1834, to April 1st, 1835. He teaches one or more weeks 
and presents himself to the inspectors for examination, obtains a 
certificate, and continues his school. The trustees in their re- 
turn state, " Our school has been taught five months by a quali- 
fied teacher." Is it a true or false return? 

Answer. It is unquestionably a false return, unless the dis- 
trict school was taught a suflScicnt time during the year 1834, 
previous to the inspection of the teacher referred to, by some 
other teacher qualified according to law. The annual report of 
the trustees must be dated on the first day of January of the 
year in which it is transmitted ; and it must specify the whole 
time any school has been kept in the district during the year 
ending on the day previous to the date of such report, distinguish- 
ing what portion of the time such school has been kept by quali- 
fied teachers. 

If, in the case stated by you, no school was kept during the 
year 1834 by a qualified teacher, excepting the one specified, 
the report is false in stating that a school has been taught five 
months by a quahfied teacher, as it includes part of the year 
1835, when it professes to be a report for the year 1834. 

2nd. They pay the public money as far as it will go towards 
the wages of the teacher, and then assess the parents of the chil- 
dren for the remainder, as if the school had been taught the 



214 CASES DECIDED BY THE 

whole tirae by a qualified leacher. Is it legal or illegal? If il- 
legal, what is their liability? 

Answer. If the public money paid to him does not exceed 
the amount of his wages during the time he held a certificate, 
tixe payment is legal; and the balance of his wages may be 
collected of those who sent children to school. Suppose for in- 
stance, that a teacher is employed on the first day of January 
for three months at $15 per month, without a certificate of quali 
fication. He is inspected and receives a certificate on the Isi 
day of March. At the end of his term, the last of March, the 
trustees may pay him ^15, a sum equal to his wages for the 
mouth of March, during which time he held a certificate, out 
of the public mone5^s in their hands; but they cannot pay him 
more. The balance, f 30, must be collected by a rate bill, in- 
cluding all persons who have sent children to school during any 
part of the term of three months, excepting such as may be 
exempted by the trustees on account of their inability to pay. — 
Whether the teacher holds a certificate or not, the right of the 
trustees to collect his wages of those who have sent children to 
school is the same ; but unless he does hold a certificate, they 
cannot pay him any portion of the public money. If they pay 
him his wages out of the public money during any period of 
time when he was not qualified, it is illegal, and they are liable 
to a prosecution as will be seen hereafter. 

3<1. Have the trustees a right to appropriate the public money 
to the payment of the wages of a teacher who has no certificate 
dated within a year: and if they have not and do it, how are 
they to be made answerable? 

Answer. They have no right to pay public money to a teacher, 
who has not received a certificate of qualification from the in- 
spectors of common schools of the town within a year. If they 
do so, and make a report, on which the district will be entitled 
to receive its portion of the public money from the commission- 
ers of common schools, the report must necessarily be false, as 
it must set forth that all n)oneys, received during the year re- 
ported, have been applied to the payment of the compensation 
of a qualified teacher : and no teacher is qualified, unless he 
holds a certificate dated within one year from the inspectors of 
the town. Should such a i-eport be made, the trustees signing 
it would forfeit the sum of twenty-five dollars, and be guilty of 
a misdemeanor by virtue of the provisions of section 96, page 
485, 1 R. S. 

It has been supposed that trustees of school districts might be 
prosecuted under section 39, psige 696, 2 R. S. for paying pub- 
lic money to a teacher not qualified according to law ; but al- 
though the act relating to common schools intends that the pub- 



SUPERINTENDENT OF COMMON SCHOOLS. 215 

lie moneys shall not be paid to teachers who do not hold certifi- 
<:ates of quaUfication from the inspectors, the prohibition does 
not appear to be so clear and express as to be made the ground 
of a criminal prosecution. 

But I am decidedly of opinion that an action for money had 
and received by trustees of school districts against their predeces- 
sors will lie under section 102, page 486, 1 R. S. which gives 
successors the same remedies for the recovery of an unpaid ba- 
lance in the hands of a former trustee or his representatives, as 
are given to commissioners of common schools in such a case. 
See section 40, page 474, same volume. Although trustees of 
school districts are not prohibited in so many words from paying 
public money to a teacher not qualified, yet tlie intention of the 
law is clear. It is the duty of the trustees to pay the wages of 
'' teachers when qualified, out of the moneys which shall come 
into their hands from the commissioners," «fec. by virtue of sub. 
•S, of sec. 75, page 481, 1 R. S. Under section 24, same vol. 
pstge 471, no moneys can be paid to a school district, unless 
during the previous year a school has been kept therein three 
months by a qualified teacher, and unless "all moneys received 
from the commissioners during that year, have been applied to 
the payment of the compensation of such teacher." The pay- 
ment of public moneys, as the school moneys received from the 
commissioners are usually called, to a teacher not qualified, in- 
volves therefore a forfeiture to the district, in which such pay- 
ment is made, of its right to receive any public money the next 
year. Such payment by trustees I consider just as unauthoriz- 
ed and illegal as if it had been applied to the erection of a school- 
house or the purchase of fuel. It is not a payment in law, and 
a recovery may be had against them, as I have before stated, 
for the amount as an unpaid balance in their hands. This is 
my opinion on full consideration, and I think any court would 
60 decide. 

The inhabitants of school district No. 1 2 in the town 
of Genoa, ex parte. 

If inspectors examine a teacher, and refuse to give him a certificate of qualifi- 
cation, the Superintendent will not interfere without very strong reasons. 

In this case a teacher was presented to the inspectors of com- 
mon schools of the town of Genoa for examination. The three 
inspectors of the town, and two of the commissioners, attended for 
the purpose. The teacher passed an examination in several 
branches, but declined answering any questions in grammar or 
geography. The inspectors therefore refused to grant him a cer- 
tificate of quaUfication. The inhabitants of the district being 



216 CASES I>EGIDED BT THF 

desiroi^ of continuing him in employment, and of paying hiin 
the public money, applied to the Superintendent to know whe- 
ther he would review the decision of the inspectors. 

By John A. Ihx, February 24, 1835. The statute has con- 
fided the power of examining teachers and granting them certi- 
ficates of qualification to the inspectors of common schools, and 
with the exercise of this power I could not with propriety inter- 
fere, excepting in a very strong case. It would, be extremely 
difficult for me at a distance to ascertain, whether the individual, 
who had been refused a certificate of qualification, ought to re- 
ceive it. I did, on a recent occasion, sustain the decision of the 
inspectors of common, scliools of the town of Petersburgh, in re- 
fusing to certify to the qualifications of a teacher.. He appealed 
to me, and I dismissed his appeal on the evidence furnished by 
the appeal itself that he was not qualified.* But the case stated 
by you presents much greater diffictilty. I could take notice of 
it on an appeal regularly presented, but I should hardly deem 
it proper to set aside the decision of the inspectors and pronounce 
the person referred to a qualified teacher, if he had been, consider- 
ed deficient in a knowledge of any branch of instruction usually 
taught in the common schools, or if he had refused to be examin- 
ed in any such brartch ; for his refusal could only be regarded as- 
a tacit, confession of his incompetency to sustain an examination. 

The Trustees of school district Noi in the town 

of Hoosick, ex parte. 

If a man removes^from a district on the last dayof December,. his- children are to 
be enumerated in the district into which he moves-. 

A. B. removed on the 31st day of December, 1834, from one 
school district in the town of Hoosick into another district in the 
same town. The removal was commenced and completed on 
that day. The question proposed was, in which district his chil- 
dren were to be enumerated. 

By John A. Dix, February 26, 183.5. The rule is settled 
that the children of a man removing on the last day of Decem- 
ber from one school district to another, are to be enumerated in 
the district into which he moves. The equity of the rule is this: 
the enumeration is made with a view to the apportionment of 
the money for the use of schools for the succeeding year, and it 
is proper that the money drawn upon the basis of that enumer- 
ation, should as far as possible, go to the district in which the 
children enumerated are to reside, and in which the money re- 

* See the case of A. G. H. against the inspectors of common schools of the 
town of Petersburgh, page 209 



SUPERINTENDENT OF COMMON SCHOOLS. 217 

ceived for their benefit is to be expended. I have, therefore, de- 
cided that if a man changes his residence at any time during 
the day ontheSlst of December, hischildren shall be enumerat- 
ed in the district into which he move&. 

The CollectoF of school district No. 1 1 in the town 
of Farmington, ex parte. 

If a collector takes and sells property to pay a- tax, and the owner refuses to re- 
ceive the excess, the collector must retain tlie amount in his hands. 

Tliia wa&a case in which the collector of school district No. IJ. 
in the town of Farmington had sold, under a warrant issued by 
the trustees for the collection of a tax to build a school-house, a 
wagon belonging to A. B., a taxable inhabitant of the district. 
The amount of A. B.'s tax was ,*^7.98, and the wagon was sold 
for $20. On the ensuing day the collector tendered to A. B. the 
balance,^ amounting to ^12.02, which he refused to take, and 
had continued so to refuse, although he had been repeatedly re- 
quested to receive it. Under these circumstances, the opinion of 
the Superintendent was asked as to the disposition Co be made 
of it. 

By John A. Dix, Febr-uary 26, 1835. Warrants for the 
collection of taxes for school district pui'poses. are to be executed 
in the same manner as warrants issued by boards of supervisors 
to town collectors. There is no law directing what appropriation 
shall be made of money in the hands of a town collector arising 
from the sale of property ,^ when the proceeds of the sale exceed 
the amount of the tax and the person to whom the property be- 
longed refuses to receive the excess. The statute directs such 
excess to be paid to the owner of the property, if no other person 
claims it. But if any other person claims it, it is to be paid to 
the supervisor of the town. 

If it is not so claimed, and the owner of the property refuses 
to accept the excess aforesaid, the law makes no provision for the 
government of the collector. A tender of the money is sufficient 
to justify him in retaining it in his hands until it is demanded. 
If the demand should be made by the owner, you will be bound 
to pay it to him. In the mean time, you have nothing to ap- 
prehend. In six years from the time you last tendered payment 
his right to bring an action will expire by limitation. If he 
brings an action for the excess of the proceeds of the sale, you 
can pay it into court, and by pleading and proving a tender, he 
must pay costs. If he brings an action of trespass, you will 
stand on the same ground as you would if the money were not 
in your hands : the result will depend on the sufficiency of the 



218 CASES DECIDED BY THE 

process, which is a question altogether distinct from the posses- 
sion of the money. 

The Trustees of joint school district No. 17 in the 
towns of Catharine and Cathn, ex parte, 

A tax must be for a specific object. 

A collector is not bound to take any particular article of property at the request 

of the owner ; but if he does so it will be an answer to the charge of taking 

an excesssive distress. 

At the annual meeting in joint school district No. 17 in the 
towns of Catharine and Catlin, a tax of twenty dollars was vot- 
ed to purchase fuel, one hundred and thirty dollars for enlarging 
the district school-house, and five dollars and fifty cents for reim- 
bursing the trustees for moneys expended by them. The ques- 
tion proposed was whether the tax was legal. 

By John A. Dix, February 26, 1835. The proceedings of 
your annual meeting appear to be legal with a single exception. 
The notice for the meeting was sufficient ; but there is an item 
of five dollars and fifty cents to reimburse the trustees for a simi- 
lar amount expended by them over and above the amount of 
moneys belonging to the district, which came into their hands. 
The right of inhabitants of school districts to vote taxes is restrict- 
ed to certain specified objects, and it should always appear by the 
proceedings that the tax is intended for one of those objects. See 
sec. 61, common school act, and decision No. 15 of the Superin- 
tendent of Common Schools, heretofore published with the school 
laws.* The reimbursement of moneys expended by tmstees over 
and above their receipts, is not among the enumerated objects 
for which a tax may be voted, although it is possible that the 
expenditure may have been made for some authorized purpose. 
For instance, if the amount of the excess had been paid by them 
for fuel, the inhabitants might have voted a tax for fuel to cover 
it. But if it had been to pay the wages of a teacher, or for any 
oliject not specified in section 61, it could not be legally voted. 
The item of the tax in question seems to me objectionable now 
for want of that specific designation of the object in view, which 
is indispensable to show that the inhabitants have not exceeded 
their powers. If an appeal had been presented to me I might 
have prevented difficulty, but without an appeal I cannot in- 
terpose. If the case were to be brought before a court of law, 
1 should apprehend that the proceedings would be set aside on 
the srround alcove stated. By reference to the case of Baker vs. 

* See the case of the tnistees of school district No. 1 in the town of James- 
town, page 27. 



SUPERINTENDENT OF COMMON SCHOOLS. 219 

Freeman, 9 Wendell 36, you will perceive the supreme court 
has, in effect, decided that if in voting a tax a sum is included 
for an object unauthorized by law, the whole proceeding is viti- 
ated and no part of the tax can be collected. The proceedings 
in your case may now be abandoned, a special meeting called 
and a tax voted anew. I see no other certain mode of avoiding 
litigation, which will be vexatious even if successful. 

A collector should aim to take property amply sufficient t^ sa- 
tisfy the tax to be paid, and no more. He is not bound to take 
the particular article of property offered by the person on whom 
the tax is assessed. For instance, if a canal boat is offered, b^ 
may decline it and take a cow or a dozen sheep ; but if he were 
to take and sell, at the request of the owner, property worth ten 
times the amount of the tax, it would be an answer to the charge 
of making an excessive distress. 

Elihu Tilden and others, agaimt the inhabitants of 
school district No. 27 in the town of Onondaga. 

If at a meeting called to fix the site of a school-house a reasonable time has not 
been given for all the inhabitants to assemble, a new meeting will be ordered. 

The facts of this case are stated in the Stiperintendent's or- 
der. 

By John A. Dix, February 26, 1835. This is an appeal by 
certain inhabitants of school district No. 27 in the town of On- 
ondaga, from the proceedings of a special meeting held o i he 
5th of February instant, at which the site of the school-house 
was fixed. 

It is alleged by the appellants that the site has been fixed at 
an inconvenient place, and that several of the inhabitants of the 
district were deprived of the opportunity of voting by the refusal 
of those who were assembled at the hour appointed for the meet- 
ing to wait a short time for others, who were expected, before they 
proceeded to business. In the answer to the appeal it is alleged 
that there was a majority of the inhabitants residing in the dis- 
trict present at the time the site was fixed ; but the allegation with 
regard to the refusal of those present to wait for others who wish- 
ed to have an opportunity of voting, is not negatived by the re- 
spondents. 

There is no matter more deeply affecting the interests of a 
school district than the act of fixing a site for the school-house. 
So long as a district remains unaltered the site cannot be chang- 
ed, when the school-house has been built or purchased, but upon 
conditions, which almost always interpose an insuperable obsta- 
cle to such change. It Is of the utmost importance, therefore, that 
the wishes of all the inhabitants should be clearly ascertained, 



220 CASESf DECIDED BY TECE' 

and that every opportunity which-can be desired should be afford- 
ed for comparing their views. Deliberation, and a full and fair 
expression of opinion should be secured before a decision, which 
it is extremely difficult to reverse,- is pronounced. 

Under the circumstances of the case, and under the influence 
of the considerations above mentioned, the Superintendent is of 
opinion that the matter in dispute should again be presented 
for the determination of the inhabitants. 

It is, therefore, ordered, that the proceedings of the meeting 
aforesaid, held on the 5th instant,, be and they are hereby set 
aside. And it is further ordered, that the trustees of school dis- 
trict No. 27 proceed forthwith to call a special meeting of the 
inhabitants for the purpose of fixing a site for a school-house, 
specifying in the notice the object of the meeting, and that it is 
called by the direction of the Superintendent of Common 
iSehools. 

The inhabitants of school district No 2 in tHe town 
of Stamford, and of joiftt district No. 12 in Stam- 
ford £uid Harpersfield, against the Commissioners 
of Common Schools of said towns. 

School districts should not be formed with less than forty children between five 
and sixteen years of age. 

The iacts of this case are stated in the Superintendent's or- 
der. 

By John A. Tiii^y February 27, 1835. The Superintendent 
of common schools has carefully examined the appeal of certain 
inhabitants of school district No. 2 in Stamford, and of school 
district No. 12 lying partly in said town and partly in the town 
of Harpersfield ; antl also the answer of the commissioners of 
common schools of said towns, and the papers submitted by the 
inhabitants of a new school district formed out of the two dis- 
tricts before mentioned and No. 4 in Stamford, said appeal hav 
ing been brought from the proceedings of the commissioners in 
foiming the new district aforesaid. 

The Superintendent is well aware that the commissioners 
have acted in this case with a sincere desire to promote the inte- 
rest of all concerned and to advance the cause of education ; and 
he regrets that he is compelled from regard to principles, which 
can rarely be departed from with safety, to set aside their pro- 
ceedings. The commissioners have not perhaps had so frequent 
occasion as the Superintendent to remark, that almost all the ex- 
isting evils of the common school system have their origin in the 
limited means of the school districts. The tendency is to sub- 



StrPERINTENDENT OF COMMON SCHOOLS. 221 

division and to a contraction of their territorial boundaries. This 
consequence must follow in some degree from the increase of po- 
pulation; but the subdivision of school districts tends to advance 
in a much greater ratio. The average number of children in 
our school districts is about fifty-five. No school district should 
number less than forty children between five and sixteen years of 
age. From the observations he has made the Superintendent 
deems it due to the common school system, that no new district 
shall be formed with a much smaller number, unless peculiar 
circumstances render it proper to make it an exception to the ge- 
neral rule. In feeble districts cheap instructors, poor and ill fur- 
nished school-houses, and a general languor of the cause of edu- 
cation, are almost certain to be found. 

In the case under consideration a district is formed with a tax- 
able property of about eight thousand dollars, and children va- 
riously stated from twenty-two to thirty in number. One of the 
districts, (No. 12,) out of which the new distiict is formed, is re- 
duced from 53 children between 5 and 16 years of age to 38; 
and district No. 2 is reduced from 40 to 33. District No. 4 is 
not injuriously affected by the alteration. But the Superinten- 
dent does not perceive that he can, consistently with the rule al- 
ready suggested, sanction the formation of a new district unless the 
accommodation of the inhabitants renders it indipensable, when 
the consequence is to reduce two existing districts below the pro- 
per standard, and create another which, both in point of property 
and children, is also far below the average ability of the school 
districts throughout the state. There is nothing in the local situ- 
ation of the territory taken to form the new district which ren- 
ders the creation of another district necessary. The school-houses 
in (he adjacent districts are near, and, with the exception of dis- 
trict No. 4, the schools cannot be so crowded as to be inconvenient. 
The number of scholars reported as having received instruction 
during the year 1834 in district No. 2 is 62, and in district No. 12 
the number reported is 59; but it by no means follows that the 
whole number in either case was receiving instruction at the 
same time. The whole number of scholars reported in the nevv^ 
district is but 32, whereas the number of children between 5 and 
16 years of age is somewhat less. 

The erection of a school-house by a part of (he inhabitants of 
a district at their own expense ought not to be allowed to in- 
fluence the commissioners in forming them into a new district. 
Should such a rule be adopted, a few persons would always have 
it in their power to break up the district. The only questions 
are whether the parties interested are so inconviently situated as 
to need a separate organization, and whether they can be so or- 



222 CASES DECIDED BY THE 

ganized without doing injustice to others and prejudicing the in^ 
terests of education. 

The Superintendent regrets that he is constrained to differ in 
opinion with the commissioners of common schools; but after 
full consideration he deems it his duty to set aside their proceed- 
ings. 

It is therefore ordered, that the new district, formed as afore- 
said out of districts No. 2, 4 and 12, be, and it is hereby annulled. 

The Trustees of school district No. in the town 

of Huntington, ex parte. 

Trastees cannot levy a tax without a vote of the district. 

Trustees being authorized by a vote of the district to do any act involving an ex- 
penditure of money, nnust be indemnified by the district. 

In this case a vote was passed at a district meeting to take 
down the school-house and put it up at a different place, the site 
having been legally changed. No tax was voted to pay the ex- 
pense of removal. After the house was removed, the inhabitants 
of the district refused to vote a tax to cover the expenditures of 
the trustees. The question proposed was whether the trustees 
could levy the necessary sum for the purpose, without a vote of 
the inhabitants, and if not, what was the proper remedy. 

By John A. Dix, March 5, 1835. The trustees of a dis- 
trict have no right to make out a tax list and levy a tax, unless 
the inhabitants vote a specific sum so to be levied. The com- 
munication heretofore made by me on this subject presumed that 
such a tax would be voted by the inhabitants; and I said, that 
in case of their refusal to vote it, I should consider it my duty to 
direct to be levied on the property of the district a sum sufficient 
to cover any expenditures which may have been incurred in 
pursuance of a vote of the inhabitants to remove or repair the 
house. If trustees undertake to remove a school-house, buy a 
lot for a site, or do any other act which they ate not by law au- 
thorized to do without a vote of the inhabitants of the district, it 
is at their own peril. The inhabitants may ratify their pro- 
ceedings by a subsequent vote ; but if they do not choose to do 
so, the trustees are without remedy. I have, however, uniform- 
ly directed, where the inhabitants of a school district have, by a 
vote to that effect, authorized their trustees to go on and make 
repairs, or do any other lawful acts involving an expenditure of 
money, that the districts should save the trustees harmless, if 
the latter have acted in good faith. The inhabitants may al- 
ways limit an expenditure in contemplation by voting a specific 
sum for the purpose: they should always do so; but if they 
neglect it, and give a general direction to the trustees to go on 



SUPERINTENDENT OF COMMON SCHOOLS. 223 

and make repairs, or do any other act authorized by law, with- 
out Hmiting the amount to be expended, I shall always deem it 
my duty, in case the inhabitants refuse, after the work is done, 
to vote an amount sufficient to cover the expenditure, to direct 
such amount to be levied, on receiving proof that it is no more 
than has been reasonably expended.* But the trustees cannot, 
without a vote of the district, or without an order from the Su- 
perintendent, levy a tax on a district, excepting in the special 
manner provided bylaw in case of a division of a school district, 
where the property of the district is to be divided, and has for that 
purpose been appraised by the commissioners of common schools. 

The Trustees of school district Xo. in the town 

of Patterson, ex parte. 

If the clerk gives a verbal notice for a special meeting to part of the inhabitants 
and a written notice to the residue, the proceedings are not void, but may be 
set aside on showing cause. 

In this case the clerk of school district No. in the town 

of Patterson, commenced giving verbal notices for a district meet- 
ing, but after having notified a few persons he served a written 
notice on the residue of the inhabitants of the district, as requir- 
ed bylaw. The question submitted was whether the proceed- 
ings of the meeting held in pursuance of such a notice wexQ le- 
gal? 

By John A. Uix, March 6, 1835, If the clerk of a school 
district warns a few of the inhabitants verbally to attend a meet- 
ing and afterwards notifies the residue by a written notice as re- 
quired by law, the proceedings may not be void, but may be set 
aside on showing cause. 1 have always held that the inhabi- 
tants of a school district, coming together without any attempt 
on the part of the clerk or trustees to give a legal notice, could 
not act; their proceedings would be void, as they would not be 
legally assembled. But if some of the inhabitants have been 
notified as required by law, and the notice is defective as to the 
others, the proceedings are not void, but voidable on showing 
sufficient cause to the Superintendent. It may be in the case 
referred to by you that the persons who received a verbal notice 
^vere present at the meeting. If so, I would not allow them to 
object to the insufficiency of the notice. It may be that they 
were all present but one or two: in this case I should not disturb 
the proceedings, unless the omission to give the proper notice was 
wilful and fraudulent. There are many circumstances to be 

* See the case of the trustees of school district No. 30 in the town of Johns- 
town, against the inhabitants of said town, page 161. 



224 CASES DECIDED BY THE 

taken into consideration in sucli cases, in coming to a decision : 
and, therefore, it is impossible to give to the general proposition 
contained in your letter an answer which would be applicable to 
every case. The clerk should undoubtedly, when he received the 
written order referred to, have retraced his steps and given every 
voter a written notice, by reading it to him or leaving a cop)"^ 
and yet the reasons in favor of setting aside the proceedings may 
not be strong enough to justify such a measure. 

The Trustees of school district No. 7 in the town of 
Philadelphia, ex parte. 

A minister of the gospel, being a freeholder, may vote at school district 
meetings. 

The following question was proposed for the Superintendent's 
opinion: 

Has a minister of the gospel, residing in a school district and 
owning property therein, but not to the amount for which min- 
isters of the gospel are exempt by law from taxation, a right to 
vote at a meeting of the inhabitants of the district? 

By John A. Dix, March 6, 1835. A minister of the gospel 
if he is "a freeholder in the town," although his freehold may 
not be equal in value to the amount exempt from taxation, may 
vote at the meetings of the school district in which he resides. 
But if he is not a " freeholder in the town," and if his property 
is all personal, he cannot vote, for his personal property being 
wholly exempt from taxation under the general provision rela 
tive to the assessment of taxes, is not " liable to taxation in the 
district ;" nor is he liable to be assessed to work on the highway, 
as there is a special exemption in his favor. See 1 R. S. sec. 24, 
page 506. Tf he has been assessed to pay taxes in the town dur- 
ing the present or the preceding year, he may vote ; but I infer 
from your inquiry that he is not liable to taxation at all. 

The whole question, therefore, turns on his being " a free- 
holder in the town." If he is, he can vote ; if not, he cannot 
vote without incurring a penalty of ten dollars. 

The Commissioners of Common Schools of the town 
of Georgetown, ex parte. 

If one district is united to another, the public money belonging to either must 
be applied for the common benefit of all. 

In consequence of a dispute as to the boundaries of school dis- 
tricts No. 2 and 8 in the town of Georgetown, a small balance 
of the public moneys distributed in April, 1834, was retained by 
the commissioners of common schools. Near the close of tbe^ 



SUPERINTENDENT OF COMMON SCHOOLS. 225 

year 1 834, district No. 2 was annexed to No. 8, and after their 
Hflion the balance so retained was adjudged to belong to the 
former. The question proposed was whetlier it could be applied 
exclusively for the benefit of the individuals formerly belonging 
to that district, or whether the whole united district should par- 
ticipate in its application. 

By John A. Dix, March 9, 1835. The piopriety of paying^ 
over to the trustees of late district No. 2 the small balance of 
public money in your hands which was appropriated to tliat dis- 
trict, must, it seea)s to me, depend on a single circumstance. 
The district is now united to another. If the money is paid to 
the trustees of late district No. 2, have they authority (o make a 
lawful disposition of it? Certainly not, unless they are bound, 
as former trustees of the district, to pay the wages of a qualified 
teacher, under a contract which has been fulfilled on his part. 
If they employed a teacher, and he is entitled to a balance for 
teaching, and has received a certificate from the itispectors in tho 
town, then the public money ought to be paid to the tiuslees for 
the discharge of that balance, as far as it will go. But if there 
is no such balance due, the money should be paid to (Jie trustees 
of district No. 8, and appropriated to the benefit of the whole 
district. There is no law by which the moneys derived from 
the common school fund can be applied to the benefit of a part 
of a school district, and it is only as an independent district that 
the inhabitants of No. 2 could be exclusively benefited by the 
money. From the moment, therefore, that they were united to 
another district the public n)oney belonging to No. 2 became ap- 
plicable to the benefit of the united district, to be expended as 
the law directs, unless there was a balance due a •qualified teach- 
er in No. 2. In that case the inhabitants of No. 2 might be ex- 
clusively l^enefited by the application of the balaoce in your 
hands to the discharge of the debt. 

Francis Clarke, against the Trustees of joint school 
district No. 12 in the towns of Shelby and Ridge- 
way. 

Trustees, in making out a (ax list, are bound to know who are and who are not 

taxable inhabitants of the district. 
The last assessment roll of the town is the proper guide to trustees in making 

out a tax list as to the valuation of properfy, but not as to ownership. 

The appellant was an inhabitant of that part of joint school 
district No. 12 in the towns of Shelby and Ridgeway which was 
included within the boundaries of the latter town. On the 1st 
of September, 1834. he disposed of his stock in trade, and remov- 
ed with his family, on the 19th of October ensuing, to the city 

15 



226 Cases decided by the 

of New- York, with the intention of making it his place of resi- 
dence. On the 16th of December he returned to Ridgeway to 
clce his unsettled business, and remained there nine days, and 
he again returned to Ridgeway in February for a few days. 
On the 27th of January a tax was laid in district No. 12 to 
build a school-house, and he was included in the tax list as an 
inhabitant of the district. The questions proposed were, w^he- 
ther he could be taxed as such on his personal property, and 
whether he could be taxed for several lots of land in the district, 
which he had sold since the last assessment roll of the town was 
made out ? 

By John A. Dix, March 10, 1835. This is a case submit- 
ted by Francis Clarke and the trustees of joint district No. 12 in 
the towns of Shelby and Ridgeway, in relation to the assessment 
of the former to pay a tax for building a sehool-house in said 
district. 

The statement contained in the affidavit of Francis Clarke, 
which affidavit is referred to in the statement signed by him and 
the trustees, and is not disputed by the latter, is conclusive as to 
the fact that he was not, at the time the tax list was made out, 
a resident of the district. So far, therefore, as the assessment 
of his pereonal property is concerned, he was not lawfully in- 
cluded in the tax list, which could only embrace " the taxable 
inhabitants residing in the district at the time of making out the 
list." He might be included in it as a non-resident owner of 
property, and was therefore justly taxable for all the cleared and 
eultivated lots of which he was the owner at the time the tax list 
was made out. 

The trustees were bound to know who were and who were 
not taxable inhabitants of the district, and they were also bound 
to know who were and who were not owners of property within 
the district. The last assessment loM of the town was their pro- 
per guide only as to the valuation of the property, and not as to 
the ownership. Mr. Clarke swears that h© was at the time the 
tax was made out the owner of lots No. 15, 16 and 83 only, and 
that the valuation of said lots, accofding to the last assessment 
roll of the town, was f 1500. On those lots an exemption is not 
daimed. 

It is hereby decided, that Mr. Clarke be released from the tax 
on all his personal property, and that he be taxed on $1500, the 
value of the real estate possessed by him at the time the tax list 
was made out. Th& circumstances connected with the removal 
of Mr. Clarke were such that a difference of opinion with regard 
to his residence might well be entertained, and as the trustees 
have acted in good faith, it is further ordered that they be, 
and they are hereby authorized to assess upon the owners of 



SUPERINTENDENT OF COMMON SCHOOLS. 227 

lots No. 25, 33, 42, 77, 272, 274 and 275, so much of Mr. 
Clarke's (ax as was assessed to him on account of those lots, and 
to reassess the deficiency upon the whole taxable property of the 
district* 

The Clerk of school district No. 23 in the town of 
Orleans, ex parte. 

It' an alteration is made in a school-district, without the consent of Uie trustees, 
and without the knowledge of the parties interested, an appeal to (he Super- 
intendent will be allowed after three months. 

In this case it was alleged that the comniissic«iers of com- 
mon schools had made an alteration in school district No. 23, 
and given a notice to one of the trustees, who was desirous that 
the alteration should take place, and who concealed his know- 
ledge of it from his associate trustees and from the parties im- 
iuediately interested, until after tlie expiration of three months. 

By John A. Dix, March 12, 1835. The question submit- 
ted to me is, whether an appeal will be allowed where a new 
district has been formed by the commissioners of common 
^ichools, and a. notice in writing read to one of the trustees of a 
district, from which such new district has been partly taken, and 
the trustee, to whom the notice was so read, refused or neglected 
to give notice to the other trustees of the district until after the 
^jxpiratiou of three months, and neither the inhabitants, nor the 
two trustees last referred to, had any knowledge that such al- 
teration was contemplated. 

In such a case I should certainly allow an appeal The par- 
lies interested should be apprized of t!ie proposed alteration ; and 
if notice has not been given, or if the person to whom it is giv- 
en, has intentionally withheld it from others, who would have 
availed themselves of it to resist the measure in contemplation, 

* In the case of Easton and otJiers v«. Calendar, 11 Wendell 90, the Supreme 
Court held that the trustees of a school district were not answerable as trespassers 
in omitting to insert the names of all the taxable inhabitants in a tax list, the omis- 
sion being an error in judgment, and there being no evidence of bad faith. The 
court also said, " The plaintiff below was not without his remedy, 1 R. S. 487, 
§ 110, 111, and the amendment of the law, 20th April, 1830, provides that any 
person conceiving himself aggrieved in consequence of any decision made by the 
^trustees of any district, in paying any teacher, or concerning any other matter, 
under the present title, (which includes the whole of the school act,) may ap- 
peal to the Superintendent of Common Schools, whose decision sha'l be final. 
This provision was intended for what it practically is, a cheap and expeditious 
mode of settling most, if not all of the difficulties and disputes ari.<iing in the 
course of the execution of the law. A common law certiorari would no doubt 
lie from this court, to the trustees to bring up and correct any erroneous pro- 
ceeding not concluded by an adjudication of the Superintendent, or in a case 
where his powers were inadequate to give the relief to which the party was en- 
tiUed." 



^^O CASES DECIDED BY THE 

and the latter have no knowledge of it, I should deem it due to 
every consideration of equity to allow the parties aggrieved to 
come in and show cause why the proceeding complained of 
should be set aside. 

(anonymous.) 

A tax cannot be voted to buy a record book for a school district. (But see note.) 
In voting a tax to purchase a site, a sufficient sum may be included to pay for 
recording the deed. 

By John A. Dix, March 18, 1835. No authority is given 
by the statute to the inhabitants of a school district to vote a tax 
to buy a record book for the use of the district.* The intention 
was that such a book should be provided, but it was not includ- 
ed in t% enuiTieration of the objects for which a tax may be 
voted. 

When a tax is voted to purchase a site for a school-house, 
a sufficient sum may be included in it to pay for recording the 
deed : for this is necessary to perfect the title, and it is, therefore 
a part of the expense of procuring the site. 

The Commissioners of Common Schools of the towii 
of Norwich, ex parte. 

The funds arising from the gospel and school lots belonging to the twenty town- 
ships on the Unadilla river are to be applied exclusively to the benefit of the 
inhabitants of such townships. 

None but inhabitants of the township can participate in the election of a town 
agent, or in directing the application to be made of the funds arising from the 
gospel and school lots. 

In this case the direction of the Superintendent was requested 
as to the proper course to be pursued, the inhabitants of township 
No. 15, one of the twenty townships on the Unadilla river, and 
constituting part of the town of Norwich, having failed to elect 
an agent for said township, in the manner required by law. — 
He was also desired to state in what manner the proceeds of the 
funds aiising from the gospel and school lots were to be applied. 

By John A. Dix, March 26, 1835. The gospel and school 
lots belonging to the twenty townships on the Unadilla river, 
were set apart for the benefit of the inhabitants of those town- 
ships. The act of 13th April, 181^^, Laws of N. Y. 42d ses- 
sion, chapter 224, makes a special provision for the manage- 
ment and appropriation of the funds derived from the lots be- 

• By an act passed the 22d April, 1837, the inhabitants of school districts are 
authorized to vote a tax for tHe purpose of purchasing a book to record their 
proceedings. This provision was made to remedy the defect in the law, tu 
which the above decision refers. 



SUPERINTENDENT OF COMMON SCHOOLS. 229 

longing to the 10(h and 15th townships. This act was not re- 
vised; see page 655, 3 R. S. but continues in full force. By the 
fourth section of the act the interest arising from the moneys de- 
rived from the sale of lots belonging to either of the townships 
is to be applied to the support of common schools '■ in such man- 
ner as the inhabitants of such township" or a majority of them 
shall direct. 

The second and third sections of the act, direct the manner 
of proceeding in the appointment of a town agent. The in- 
habitants of the 10th township are required to meet annually 
(until the township shall be erected into a separate town) on the 
first Tuesday of June, and elect an agent for said township. — 
There is no authority to proceed in any other manner, nor 
would any proceedings in contra veni ion of these provisions have 
any vaUdity whatever. The 4th title of chap. 15, part 1, R. S. 
has no application to this case. By the note of the Revisers at 
the bottom of page 499, 1 R. S. it appears that this title was 
compiled from laws which had no reference to the townships in 
question, as ma}' be seen by an examination of those laws. It 
will, therefore, be the duty of the inhabitants of the 10th town- 
ship to meet on the 1st Tuesday of June next, elect an ageni, 
and vote what disposition shall be made of the interest arising 
from the sale of lots belonging to said township. 

The inhabitants of the I5th township should have met on 
the day of the annual town meeting for the town of Norwich, 
separate and apart from the other inhabitants of that town, 
elected an agent, and voted what appli(^ation should be made 
of the interest arising from the sale of the lots belonging to 
the 15th township. If they have not done so, I see no alter- 
native but for the agent elected last year to hold over and apply 
the moneys, which may come into his hands, as he did last year. 
The directions of the inhabitants as to the application of the 
moneys, whenever those directions are given in the manner 
specified in the act of 13th April, 1819, are binding and must 
be carried into effect. But none but the inhabitants of the town- 
ship (not the inhabitants of the town of which the township is 
a part) can participate in the proceedings. 

The Trustees of a separate neighborhood in the town 
of Southport, ex parte. 

Children residing in other states when attending schools in separate neighbor- 
hoods within this state cannot share the pubhc moneys. 

In this case children from the state of Pennsylvania had at- 
tended school in a separate neighborhood in the state of New- 
York, and the question proposed was whether the children sa 



230 CASES DECIDED BY THE 

attending school could share the public moneys derived from the 
New- York school fund. 

By John A. Dix, March 31, 1835. Children residing m 
other states and admitted to schools within this state cannot par- 
ticipate in the distribution of the school moneys. Subdivision 2, 
of section 20, page 470. 1 R. S. authorizes the establishment of 
separate neighbourhoods where it is convenient to unite with the 
inhabitants of an adjoining state for the support of a school : 
But by the 25th section of the same title, the public moneys are 
required to be faithfully applied for the instruction of children 
residing in such neighbourhood. These provisions are so clear 
iu their language that no doubt caii exist as to their intention. 

(anonymous.) 

Trustees, guardians, executors and administrators, are taxable in their represen- 
tative character where they reside for personal property in their possession, 
whether the real parties in iuterest are benefited by the expenditure of the 
tax or not. 

By John A. Dix, April 2, 1835. Trustees, guardians, exe- 
cutors and administrators, are taxable for all personal estate in 
their possession, or under their control, in the town or ward where 
they reside. See 1 R. S. p. 389, sec. 5. I have decided that the 
same principle applies to school districts.* The personal proper- 
ty so possessed or controlled is taxable in the district in which the 
trustee, guardian, executor or administrator resides. Under sec- 
tion 10, same vol. page 391, a deduction is to be made by the 
assessors for debts due from the individual assessed in his repre- 
sentative character. The debts referred to in the section last 
mentioned, aic such as are specified in section 27, 2 R. S. page 

87. 

The question whether the real owners of the property are di- 
rectly benefited by the expenditure of the tax assessed upon it, 
does not appear to have been one of the considerations in view 
of the provisions referred to, for it is manifest that the personal 
property in the hands of a trustee, guardian, &c., in Buffalo, 
is Uable to be taxed there, although the real parties in interest 
may live in Albany. 

After the administration of an estate in the hands of an exe- 
cutor or administrator, upon the rendition and settlement of a 
final account of his proceedings, the personal property is, of 
course, not liable to taxation where he resides ; but so long as it 
is in his possession or under his control, it is so liable as before 
mentioned. In this case a reduction may be claimed from the last 



* See the case of the trustees of school district No. 8 in the town of Rensse- 
laerville, page 157. 



SUPERINTENDENT OF COMMON SCHOOLS. 231 

assessment roll of the town under the provisions of section 79, 
page 482, 1 R. S. 

The Commissioners of Common Schools of the town 
of Windham, ex parte. 

A minister of the gospel cannot be an inspector of common schools. 

At the annual town meeting in the town of Windham in the 
year 1835, three clergymen were elected inspectors of common 
wchools. The Superintendent was requested to state whether 
they were eleglble to the office to which they had been elected, 
and whether the town would in that case forfeit its right to a 
share of the public money. 

By John A. Dix, Apj-il 13, 1835. By the constitution of 
this state, art. 7, sec. 4, no minister of the gospel or priest of 
nny denomination whatsoever, is capable of holding "any civil 
or military office or place within this state." This exclusion 
clearly extends to town officers: they are public officers with au- 
thority by law to execute certain civil functions. 

An inspector of common schools is a town officer, and the in- 
iiabitants of your town having appointed to that office persons 
not eligible, the case occurs in which three justices of the peace 
may appoint. Jf, however, these persons have entered on the 
duties of their office their acts are, under the decisions of the su- 
preme court of this state, valid, so far as the public and third 
j>er3ons are concerned. Thus, if they have examined teach- 
ers and given certificates of qualification, the certificates are good, 
so as to justify the trustees of school districts in paying the pub- 
he money to teachers holding them. The right of your town to 
receive the public money cannot be affected in any manner bj 
the fact that they have been improperly elected.* 

* In the case of Wilcox vs. Smith. 5 Wendell 231, the supreme court held, 
that " an individual coming into office by color of an election or appointment, is 
an officer de facto, and his acts in relation to the public or third persons, are va- 
lid until he is removed, although it be conceded that his election or appointment 
was illegal." 

So in a case in Massachusetts, referred to by the court in the above mention- 
ed case, the acts of a shenff tie facto were held valid as to third persons, though 
his appointment was subsequently declared to have been made •♦ without con- 
rititutional and legal authority." 



.^* 



232 CASES DECIDED BY THE 

The Trustees of school district No. in the towE 

of Burhngton, ex parte. 

Mode of paying the public money to a teacher in a special case explained. 
The number of children attending school during the year, must be ascertained 
from ihe teacher's lists. 

This was an application for the direction of the Superinten- 
dent in certain cases, the nature of which will appear by his an- 
swer. 

By John A. Dix, April 16, 1835. I endeavored in my 
communication to the inspectors of common schools of the town 
of Otsego, who addressed some inquiiies to me,* to be so expli- 
cit with regard to the application of the public money to the 
payment of teachers' wages, that no misapprehension should ex- 
ist in relation to it. This letler you say you have seen, but as 
you do not consider it as meeting your inquiries. 1 proceed to an- 
swer them. 

The public money must be wholly expended for services ren- 
dered dining the year in which it is received. Suppose a teachep 
is engaged in NoveiTiber and teaches from the 1st of December 
to the end of February, thiee months. Out of the school mo- 
neys received in April ensuing he may be paid two months wa- 
ges, and the balance must be assessed on those who sent chil- 
dren to school during any part of tlie three months. All hough 
he is to be paid for the services rendered in January and Febru- 
ary out of the public money, his wages for December must nol 
be assessed exckisively on those who sent children to school dur- 
ing the month of December. This would be unequal and un- 
just. He can receive only two months' wages out of the public 
money, because he only taught two months during the year in 
which it was received ; but the money being paid to him the ba- 
lance must be considered as spread over the whole term of three 
months, and paid by those who sent children to school during 
any part of it. If the teacher should leave the school on tiie 1st of 
January, after leaching through (he month o( December, and an- 
other should be employed in his place to teach through his term, 
the same course can be pursued and the three months may be 
regarded as a single term. The money being provided as before 
stated, their respective dues would be paid out of the amount ^ 
provided. But if it becomes indispensable to settle with the first 
teacher when he leaves the school, (he necessity of the case will 
require that ho be paid by a rate bill made out against those who 
sent their children to school, unless (he trustees have in their 

* See the case of the inspectors of common schools of the town of Otsego, pag« 
SIS. 



SUPERINTENDENT OF COMMON SCHOOLS. 233 

hands public moneys received during the preceding year to be 
expended for services rendered in (hat year. 

Teachers must keep a list containing the name of every child 
attending school during each term. The trustees should take 
these lists at the end of each term, or obtain and preserve copies 
of them, and at the end of the year the exact number of chil- 
dren who have attended school may be obtained hy correcting 
the lists, so that no name shall occur more than once. There 
is no other mode of attaining a tolerable degree of accuracy in 
enumerating children who are sent to school. 

The inhabitants of joint school district No. 2 in the 
towns of Unadilla and Sydney, ex parte. 

Money cannot be raised by tax in a school district for contingent uses. 

If part of tlie inhabitants of a district se()arate from the rest, and build a private 
school-house, it will not be deemed a reason for oiganizing them into a sepa- 
rate district. 

In this case a portion of the inhabilanfsof joint school district 
No. 2 in the towns of Unadilla and Sydney, without applying 
to the commissioners of common schools of those towns built a 
school-house in one corner of the district, and set up a private 
school. Having done so, they applied to the commissioners of 
common schools to be set off as a separale district, and the appli- 
cation was refused. The applicants then applied to the Super- 
intendent to know whether, under the circumstances, he would 
not direct a new district to be formed. The Superintendent was 
also requested to state whether in his opinion a tax ol ten dollars 
could be raised for repairs in district No. 2, when it was admit- 
ted that only jSve dollars were required for the purpose. 

By John A. Dix, April 17, 1835. No tax shotdd be raised 
in a school district unless it is absolutely necessaiy for a specific 
object. It is wholly irregular and unauthoiized to raise moneys 
upon the taxable property of a district and keep them on hand 
for contingent uses. If five dollars are wanted for repairs, it is 
altogether wrong to raise ten dollars on the alleged ground that 
the balance may be wanted at a future day. The inhabitants 
of school districts are not restricted in the amount which they 
may raise for repairing a school-house, but they ought not to 
vote a larger sum than is required for the immediate purpose in 
view. 

I have always refused, excepting for the strongest reasons, to 
direct the formation of a school district on an appeal from the 
refusal of the coinmissibners of common schools, where a por- 
tion of (he inhabitants of an established district separate them- 
selves from it and build a private school-house for themselves, 
without any previous atte.npL to procure a separate organization. 



234 CASES DECIDED BY THE 

The fact that they have built a school-house at their own ex- 
pense cannot be allowed to have any weight in such a case. 
The commissioners of common schools of the towns of Unadilla 
and Sydney might have erected a new district if application had 
been made to them. But it will be perceived at once that if a 
portion of the inhabitants of a district, without applying to the 
commissioners as the law provides, set up for themselves, and 
thus disregard the provisions of the law, the example cannot be 
otherwise than pernicious, and may lead to the disorganization 
of any district in the state. I shall deem it my duty, therefore, 
to discountenance all proceedings of this sort. If a portion of 
the inhabitants of a district require a separate organization, let 
them apply to the commissioners. If the commissioners deny 
the application, let them appeal to the Superintendent, who will 
do them justice. But if they disregard the authority of both in 
the first instance, they must not deem it unjust if their applica- 
tion at a subsequent time is refused. The application will not 
be denied if it is manifestly proper to grant it ; but, as I have 
already said, the fact that a school-house has been built will 
have no influence in favor of it. 

The Commissioners of Common Schools of the town 
of Worcester, ex parte. 

If a commissioner of common schools absconds with school moneys in his hands, 

it is a loss to the town. 
A commissioner who has signed a receipt for school moneys, in conjunction with 

his colleagues, is not answerable unless the moneys actually come into his 

hands. 

This was an application to the Superintendent for his opinion 
in a case the facts of which appear by his answer. 

By John A. Dix, April 20, 1835. Jonas Chapman, Seneca 
Bigelow and Abraham Becker were appointed commissioners of 
common schools of the town of Worcester in March, 1834. 

In March, 1835, Jonas Chapman, Abraham Becker and 
Joshua K. Champion were elected to the same office. 

Before the town meeting in March, 1835, Jonas Chapman 
obtained from the collector of the town the amount raised on 
the town for common school purposes in the year 1834, being 
$109 . 15, and gave the collector a receipt signed by himself and 
Seneca Bigelow. 

The sum before mentioned as received by Chapman remained 
in his hands until about the 1st of April instant, when he ab- 
sconded without paying over any part of it to his associates ; 
and no part of it has at any time been in the hands of either of 
the other commissioners. 

The equal sum of $109.15, derived from the common school 



SUPERINTENDENT OF COMMON SCHOOLS. 235 

fund, has been received from the county treasurer, and appor- 
tioned according to law by the commissioners. 

The question now occurs, whether the town or the commis- 
sioners must sustain the loss occasioned by the absconding of 
Chapman ? 

I take it for granted that the payment to Chapman was made 
by the town collector under the warrant of the supervisors, pur- 
suant to the provisions of sec. 18, page 469, 1 R. S. If so, the 
loss must fall on the town. The commissioners are severally 
responsible only for such portion of the public moneys as actu- 
ally come into the hands of each. The fact that Bigelow sign- 
ed a receipt in conjunction with Chapman is of no consequence 
It is competent for Bigelow to show that none of the moneys 
neys thus receipted for came into his hands. 

The Trustees of school district No. 12 in the town 
of Glen, ex parte. 

A fence is a necessary appendage to a school-house. 

This was an application to the Superintendent for his opinion 
in a case in which a tax had been voted to build a fence around 
the district school-house and lot. 

By John A. Dix, April 23, 1835. I have received your 
letter inquiring whether a necessary, wood-house and fence are 
to be deemed appendages of a school-house, so as to bring them 
within the enumeration of objects for which the inhabitants of 
school districts are authorized to lay a tax on the taxable inha- 
bitants of such districts. My predecessor decided several years 
ago that a wood-house and necessary were appendages to a 
school-house within the meaning of the statute ; and in my 
opinion a fence around the school-house lot may with equal pro- 
priety be so considered. The legislature has given the inhabi- 
tants of a school district power to purchase a site for a school- 
house, and to expend four hundred dollars on the house, and 
certainly a fence may be justly regarded as a necessary appen- 
dage for the purpose of enclosing and securing the lot and build- 
ings from depredation. You may proceed and collect the tax 
laid for this purpose. 

The Trustees of school district No. in the town 

of Lansing, ex parte. 

A certificate from the inspectors of common schools that the candidate gave 
them good satisfaction in particular branches, is not a legal certificate of quali- 
fication for a teacher. 

The inspectors of common schools in the town of Lansing 
gave a teacher a certificate in the following words: 



236 CASES DECIDED BY THE 

" Having examined A. B. with a view to his obtaining a cer- 
tificate to teach a common school in this town, we do certify that 
said A. B. gave us good satisfaction in reading, writing, arith- 
metic, accent, cadence, emphasis and orthography, and we be- 
lieve him to be a man of good moral character." 

The question proposed was whether this was a sufficient cer- 
tificate of quahfication. 

By John A. Dix, April 25, 1835. A certificate of qualifi- 
cation for a teacher must be in the form " prescribed by the Su- 
perintendent of Common Schools." See the statute entitled " Of 
Common Schools," sec. 47. The Superintendent has prescribed 
the form, see page 43, pamphlet edition of the common school 
laws, published by the Superintendent in 1831. (See appendix.) 
The inspectors are wrong in giving a .certificate in any other form, 
as it is not a compliance with the statute, and may mislead those 
who do not examine the subject with scrutiny. A Certificate, 
therefore, setting forth that A. B. gave the inspectors good satis- 
faction in particular branches, and that his moral character is 
good, does not conform to the law, and it should not have been 
given by the inspectors. The law authorizes them to give a 
certificate in a certain event, and then it must be in the form 
specified. If they are satisfied as to the quahfications of the tea- 
cher, in respect to moral cliaracter, learning and ability, they are 
bound to give him such a certificate as the Superintendent shall 
have prescribed. If they are not satisfied, they should give him 
no certificate. They are wholly without authority to take a 
middle course by giving a qualified certificate.* 

The Trustees of school district No. 1 in the town of 
Cohocton, ex parte. 

If the annual report of a school district is lost and the district does not receive 
the public money, application must be made to the Superintendent of Com- 
mon Schools to tiave the deficiency supplied out of the moneys to be distri- 
buted the next year. 

The trustees of school district No. 1 in the town of Cohocton 
prepared their annual report for the year 1834, in February, 
1835, and handed it to A. B, one of their neighbors, who pro- 
mised to deliver it to the town clerk. A. B. handed it to another 
neighbor, who made a similar promise, and the report was lost 
before it reached its destination. The commissioners of common 
schools not having received it, did not include the district in the 
apportionment of the public moneys. The Superintendent was 

* See a case decided by A. C. Flagg, Dec. 16, 1827, page 24-, also the case of 
tlie ti-ustees of school district No. 4 in the town of Lenox, page 76, and a deci- 
eion dated December 26, 1834, page 199. 



SUPERINTENDENT OP COMMON SCHOOLS. 237 

desired to state in what manner the loss could be made up to 
the district. 

By John A. Dix, May 1, 1835. Your annual report fail- 
ctl to reach its destination through your own negligence. You 
should have handed it to the town clerk yourselves, or have as- 
certained, before the time appointed for the annual apportion- 
ment, that it had reached him. 

There is no remedy for the neglect on your part but to allow 
the district, out of next year's moneys, the sum it haslos^t. This 
can only be done by order of the Superintendent of Common 
Schools, on an apphcation setting forth all the facts of the case, 
under oath. Copies of the affidavits must be served on the com- 
missioners, with notice of the time when the application will be 
made. A copy of the last anmial report must also be sent to 
the Superintendent, or in default thereof an affidavit setting forth 
all the facts necessary lo entitle the district to participate in the 
distribution of the public moneys. 

When the whole case is presented, it will be considered whether, 
under all the circumstances the district should not be allowed, out 
of the moneys to be apportioned next year, the sum it would 
have received this year if the report had been delivered to the 
proper person, so as to secure the equitable rights of the inhabi- 
tants from the consequences of the neglect of the officers of the 
district. 

The Trustees of school district No. 4 in the town of 
Massena, against the Commissioners of Common 
Schools of said town. 

When a new district is formed and goes into operation before the apportionment 
of school moneys is made it must receive its share of those moneys. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, May 4, 1835. On the fifth day of March 
kst a division of school district No. 4 in the town of Massena, 
went into effect. By this division a new district was created 
and called district No. 15. On the 7th day of April the com- 
missioners of common schools of the town of Massena appor- 
tioned to district No. 15 so much of the public money allotted 
to the two districts according to the annual report of district 
No. 4 as the first mentioned district appeared to be entitled to, 
according to the number of chiklien between 5 and 16 years 
of age residing in it. From this apportionment the trustees of 
district No. 4 appealed. 

It is alleged in the affidavit of John E. Perkins, one of the 
trustees of district No. 4, that by a vote of the district, before its 
division by the commissioners, three-quarters of the public money 



238 CASES DECIDED BY THE 

were to be applied to the winter school, which commenced on the 
first day of December and continued three and a half months; 
and that as the commissioners apportioned to No. 15, $19.82, 
and to district No. 4, $22.59, the latter will only be able to apply 
to the winter school, which has been kept for the common benefit 
of all, th ree-quartersof $22 . 59, instead of th ree-quarters of $42 . 41 . 
It may be proper to remark, for the information of the trustees 
of district No. 4, although it does not touch the main question 
to be disposed of by the Superintendent, that they have no right 
to apply to the payment of the teacher any portion of the public 
money received in April, as a compensation for services rendered 
previously to the first day of January last. The Superintendent 
has repeatedly declared that the public money must be paid to 
qualified teachers for services rendered during the year in which 
the money is received. 

As to the duty of the commissioners to make the apportion- 
ment as they have done there can be no doubt. 

This is a case arising under the provisions of sec. 26 of the 
statute entitled '-Of Common Schools." Although the commis- 
sioners may have issued their order previous to the first of Janu- 
ary last the alteration did not, as is admitted by the trustees of 
No. 4, take eflect until the 5th of March. District No. 4 was 
not duly altered within the meaning of the statute until that 
day. This is, therefore, a case in which a new district was 
formed after the annual reports from the districts were received, 
or before the apportionment of school moneys was made. It 
was the imperative duty of the commissioners to make the ap- 
portionment to these districts, according to the number of chil- 
dren in each over the age of five and under sixteen years; and 
they have discharged the duty in a manner which must be ad- 
mitted to be just, according to the evidence furnished bj'^ the 
trustees of district No. 4 in their annual report. 

The amendment of the 26th section of the statute referred to 
by the act of 21st April, 1831, is intended to apply to cases in 
which a school district has gone into operation before the first of 
January, but in which there has not been time, previous to that 
day, to have a school taught for three months. The case imder 
consideration does not come within the amendment; and if it 
did the duty of the commissioners would be precisely the same, 
as the amendment merely extends the provisions of section 26 to 
a new class of cases. 

The Superintendent regrets that he cannot issue an order in 
accordance with his own views of the equity of this case; but 
the requirements of the law are so clear that he cannot venture 
to make a decision which conflicts with them. 



SUPERINTENDENT OF COMMON SCHOOLS. 239 

It is accordingly ordered, that the appeal of the trustees afore- 
said be dismissed, and the apportionment made by the commis- 
isioners be, and it is hereby sustained. 

The Trustees of school district No. 2 in the town of 
Eaton, ex parte. 

If a trustee refuses to serve, the district may elect another person to the office- 

The facts of this case are stated in the opinion of the Super- 
intendent. 

By John A. Dix,. May 5, 1835. At the annual meeting in 
district No. 2 in the town of Eaton, held in October last, three 
trustees were elected for the ensuing year. Two of the persons 
elected were present and accepted, and the meeting was regu- 
larly adjourned to a day in the next week. At the adjourned 
meeting, Bartholomew, the third person elected trustee, came 
in and declined serving. The inhabitants present at the meet- 
ing, on a motion to that effect, voted unanimously that he should 
be excused, and they then proceeded to elect Samuel Sherman 
to fill the vacancy. 

The question submitted is, whether the election of Sherman 
is legal? 

lam of opinion that it is. Sec. 71, page 480, 1 R. S. pro- 
vides for filling vacancies in school district offices in the usual 
manner, in case such an office is vacated by death, " refusal to 
serve," &c. I consider this a vacancy caused by the refusal of 
the individual elected to office to serve therein, and it was filled 
in the mode provided by law. The inhabitants of a school dis- 
trict have, it is true, no authority, aftei filling an office, to ex- 
cuse the individual chosen to it from serving therein : and I re-~ 
gard the vote to that effect in the case of Bartholomew, as no 
farther material than as affording a justification for him, in case 
he should be prosecuted for the penalty annexed by sec. 72 (vol. 
and page before referred to) to a refusal to serve. In such a case 
the vote of the meeting would doubtless go far in the mind of 
the court, before which such prosecution should be made, to 
sliow a "sufficient cause" for refusing to serve, although he 
might be put upon showing reasons for so refusing, independent- 
ly of any action of the meeting in the case. 

The legality of Sherman's election depends altogether on the 
existence of a vacancy. On this point I entertain no doubt. — - 
He was lawfully elected ; and if another vacancy has occurred 
by a removal out of the district, he and the remaining trustee 
should call a special meeting of the inhabitants to fill it. 



240 CASES DECIDED BY THE 

The Trustees of school district No. in the town 

of Smyrna, ex parte. 

Trustees may require a bond of the collector whenever a warrant is delivered to 
him for collection. 

If the trustees do not require a bond of the collector he may execute a warrant 
without giving one 

Quere. — Whether the bond given by a collector when about to execute a war- 
rant, is a security for the faithful execution of the duties of his office generally. 

The Superintendent was desired to state in this case whether 
a collector could execute a warrant without giving a bond, and 
whether the trustees were bound to exact a bond from him when- 
ever a warrant was delivered to him to collect a tax. 

By John A. Dix, May 9, 1835. The collector of a school 
district must give a bond to the trustees whenever required by 
them, "conditioned for the due and faithful execution of the du- 
ties of his office." The exaction of the bond would seem, from 
the langua'ie of the law, to be a matter of discretion with the trus- 
tees ; and if it is not required by them, the collector may go on 
and execute warrants entrusted to him without giving securit3\ 
They may require a bond to be given by him whenever any war- 
rant is delivered to him for collection ; and although the bond is 
conditioned generally for a due and faithful execution of the du- 
ties of his office, it may be questionable whether it is binding, 
excepting for the specific purpose for which it is given, that is, to 
secure the execution of the warrant about to be received by him. 
It is therefore clearly proper to exact a bond whenever a w^arrant 
is to be delivered to him, provided t!ie sum to be collected is of 
such an amount as to render it of any consequence; and if, 
through the omission of the trustees to require it, any mone)'s 
should be lost, they would be wliolly inexcusable for failing to 
take a precaution, which the law has provided for the express 
purpose of affording entire security to the district. 

The Trustees of school district No. 2 in the town of 
of Pendleton, ex parte. 

If a collector gives a bond, and after collecting part of a tax resigns, quere, whe- 
ther he is not liable, if the whole amount is not collected. 

In this case it was staled to. the Superintendent that the col- 
lector of the district had given a bond and received a warrant 
for execution, and that, after having collected part of the tax, 
he had resigned his office. The opinion of the Superintendent 
as to the lialMlity of the collector for the balance, and the course 
to be taken by the trustees, was requested. 

By John A. Dix, Maij 11, 1H35. If the collector of your 
district has resigned, you have a right to call a meeting to 



SUPERINTENDENT OK COMMON SCHOOLS. 241 

appoint another person to fill his place. Has he resigned agree- 
ably to section 33, page 348, 1 R. S.? that is, has his resig- 
nation heen accepted by three justices of the peace of the town? 
If not, he is not out of office. Even if his resignation has been 
so accepted, it may be worthy of consideration, whether, after 
having given bonds to collect and pay over a specific (ax, he is 
not liable, under those bonds, in case any moneys should be 
lost to the district by a failure to collect them within the time 
limited in the warrant delivered to him. The case is still stronger 
against him, from the fad that he has partially executed the 
warrant by collecting a portion of the tax. If there has been 
any neglect on his part; he is clearly liable under sec. 108 of the 
act relating to common schools (even if his resignation has been 
legally accepted) for the whole amount of moneys which might 
have beein collected within the time limited in the warrant deli- 
vered to him for their collection, unless those moneys shall here- 
after be collected; and the trustees may prosecute his bond to 
recover the amount, 

(anonymous.) 

The exemption of indigent persons from the payment of rate bills is a matter of 
discretion with trustees. 

The following question was submitted for the opinion of the 
Superintendent : 

" Are not all persons who have not more property than the 
law exempts from execution, indigent or poor persons, according 
to the intent of the school act?" 

By John A. Dix, May 19, 183J5. Persons who have not 
more property than the law Exempts frotn execution, are not ne- 
cessarily indigent persons. By existing laws, warrants annexed 
to rate bills are to have the effect of warrants issued by the board 
of supervisors to the eollectOrs of towns. Sttch warrants reach 
property which is by law exempt from execution. 

The exemption of indigent persons from the payment of the 
wages of teachers is a matter of discretion with the trustees, not 
regulated by any specific restriction, but entrusted to them to be 
disposed of iri good conscience, and with a just regard to the 
rights of all concerned. 

The Trustees of school district No. 7 in the town of 
Spencer, ex parte. 

If the annual meeting in a s'chool district is neglected, the district officers hold 
over until the next annual meeting. 

^Y John A. Dix, May 19, 1835. I find on the records of 
my office a coramunicatiori in the following words : "If the usual 

16 



242 CASES DECIDED BY THE 

time for an annual meeting in a school district passes by, the dis- 
trict officers elected the year before hold over another year. No 
meeting- can be called (until the usual time comes round again) 
for electing district officers unless vacancies occur^ except by or- 
der of the Superintendent of Common Schools." 

This opinion, which was given to you in answer to an inqui- 
ry addressed to me, is in conformity with the repeated decisions of 
my predecessor in office, and is founded upon the construction 
given by him to certain provisions of law, to which I will pro- 
ceed to refer you. It is proper to add that I have concurred in 
this construction, and thus it has become a rule for the determi- 
nation of all questions of the same nature, arising under the 
common school act and brought before the Superintendent for 
adjudication. 

The 70th sec. page 480, 1 R. S. provides that " the clerk, 
trustees, collector," (tec, "shall hold their respective offices until 
the annual meeting of such district next following the time of 
their appointment, and until others shall be elected in their 
places." 

This provision recognizes the right of district officers to hold 
over be5'^ond the next annual meeting after their appointment, 
unless othere are elected in their places. If the inhabitants of 
school districts have not the right to elect new officers at a spe- 
cial meeting called by the trustees, excepting in cases of acciden- 
tal vacancies, which are specially provided for, the district officers 
thus holding over beyond the annual meeting following their 
appointment, must hold until the year is fivBy expired and ano- 
ther annual meeting occurs, unless the Superintendent of Com- 
mon Schools, on an appeal to him, should order an election, in 
which case, his decision being final in the premises, a new ap- 
pointment of officers would be valid. 

By the 61st sec. sub. 3, page 478, 1 R. S.. the inhabitants of 
school districts have pov-rer " to choose a district clerk, three trus- 
tees and one district collector at their first n>eeting, and as often 
as such offices or either of them become vacated." 

The construction given to this provision in connection with the 
one first quoted is, that the legislature intended to authorize the 
inhabitants of school districts to appoint officers once in each 
year, and at the regular annual meeting in such year, and at no 
other time, unless a vacancy should occur by resignation, remo- 
val, death, refusal to serve, &c. In such cases, a special meet- 
ing may he called pursuant to the authority given by the last 
quoted provision of the statute and recognized by sec. 71, page 
480, 1 R. S. If an annual meeting passes by without an elec- 
tion, and the persons serving at the usual time for holding said 
meeting continue in the performance of theisr duties after that 



SUPERINTENDENT OF COMMON SCHOOLS. 243 

time, there would, according to the decision of the Superinten- 
dent, be no vacancy until the next annual meeting, unless one 
of the contingencies mentioned in section 71 before referred to, 
should occur. It seems to me that the language of the statute 
tairly sustains this construction ; and so far as the public interest 
is concerned it is highly important that it should l^e sustained. 
Immediately after the annual meetings the trustees of school dis- 
tricts are, in most cases, in the habit of making their arrange- 
ments for hiring teachers and opening schools, and if new offi- 
cers are not appointed at the proper time, others should not be 
allowed to come in and disturb proceedings which are in a 
course of execution. 

The Superintendent of Common Schools has no power to inter- 
fere with the determinations of other tribunals. His decisions are 
fmal with regard to the special cases in which they are pronounc- 
ed. Other tribunals have an equal right with the Superintendent 
to put their own construction upon the provisions of the statute, 
and in matters coming within their jmisdiction to lay down prin- 
ciples at variance with those which govern him in his determi- 
nations. That his decisions should be treated with some defe- 
rence on account of the special supervision which the law gives 
him over controversies arising in school districts, and indeed in 
all matters arising under the title of the statute relating to " com- 
mon schools," may reasonably be expected; and while they 
ought to be set aside by other tribunals when deemed repug- 
nant to the express provisions of law, it will doubtless be deemed 
desirable, if not proper, to sustain his constructions of the sta- 
tute referred to, iu all cases where there is any just ground for 
a difference of opinion. 

The Trustees of school district No. 2 in the town of 
Granby, against the Commissioners of Common 
Schools of said town. 

If a district entitled to receive the public money is dissolved, and part of it an- 
nexed to a district not so entitled, the latter can receive no public money in 
consequence of sucti accession. 

The facts of this case are stated in the Superintendent's deci- 
sion. 

By John A. Dix, Mai/ 20, 1835. The Superintendent of 
Common Schools has examined the statement of facts submit- 
ted to him by the trustees of school district No. 2 in the town of 
Granby and the commissioners of common schools of said town, 
in reference to the claim of said district to a distributive share of 
the public moneys for the present year, which claim has been 
denied by the commissioners. 



244 CASES DECIDED BY THE 

The facts agreed on are as follows : 

In November, 1834, the commissioners of common schools of 
Granby annul'led district No. 10, and annexed a part of it to 
No. 2. ' District No. 10 had, at the time of its dissolution, conj- 
plied with the requirements of the statute for the year 1834, so 
that its trustees would, if it had continued in existence, have 
been able to make out an annual report, on which it would have 
been entitled to receive a distributive share of the public moneys 
for the year 1835. 

District No. 2 was not and is not able to make an annual re- 
port for the year 1834, on which it could have received or can 
receive a share of the public money for the year 1835. 

The questions submitted to the Superintendent are, 1st. Whe- 
ther district. No. 2 is entitled to receive any public money for the 
present year? and 2d. Whether, if it is entitled to receive any. 
the apportionment should be made in reference to the whote 
number of children residing in it, or to the number set to it from 
district No. 10.? 

The equity of this case is clear. District No. 2 ought to re- 
ceiv^e the public money, which the children, set to it from No. 
10 would have received had the latter district not been annulled, 
and the uioney should be appropriated solely to the benefit of 
those children. But it unfortunately happens in this ease, as in 
others of equal hardship, that the express provisions of the sta- 
lute, win"ch the Superintendent has no power to supersede by a 
construction at variance with the terms of those provisions, ren- 
der any allowance of public money to district No. 2 impossible. 
District No. 10 was not in existence on the first of January last. 
It was wholly dissolved and merged in other districts, the arrange- 
ment having- taken effect immediately, by consent of all the 
})arties concerned- The portion of the district, which was added 
to No. 2, became a part of the latter on the day it was so added, 
and by virtue of the union it was entitled to participate in all its 
rights and became subject to all its liabilities. These rights and 
liabilities should have been ascertained before the arrangement 
was entered into and assented to by district No. 10: but either 
through neglect or inadvertence that portion of it belonging to^ 
No. 2 has been thus divested of a right, which it might un- 
questionably have asserted as a part of the former, had it re- 
tained its organization. There is now no remedy. The statute 
provides that " in making the apportionment of moneys among 
the several school districts, no share shall be allotted to any dis- 
trict," (fcc. " from which no sufficient annual return shall have 
J)een received," <fcc. The Superintendent has given to this pro- 
vision, a construction which admits of the correction of errors, and 
even of furnishing a new report, where one has been mislaid. 



SUPERINTENDENT OF COMMON SCHOOLS. 245 

But it is acknowledged in this case that a sufficient report can- 
not be made by district No. 2 for the year 1834, altliough the 
responsibility is alleged by the present trustees to rest with their 
predecessors, who are said to have been guilty of unpardonable 
negligence. 

The Superintendent regrets that there is no remedy for that 
f)art of district No. 10 now belonging to No. 2 ; but the law is im- 
perative, and it must be complied with. It is proper to add, that 
if district No. 2 were to receive a portion of the public money on 
account of the children set to it from No 10, it could not be ap- 
plied exclusively to the benefit of those children. The provisions 
of the law with regard to the application of the public moneys 
are such that it would necessarily go to the benefit of the whole 
district. 

By the statement of the commissioners annexed to that of the 
trustees of district No. 2, it would appear, that the trustees of 
that district in 1834 paid the public moneys to a teacher or teach- 
ers not qualified according to law. If this fact can be proved, 
the trustees making the payment should l>e prosecuted by tlieir 
successors for the amount so paid, as a balance remaining in 
fheir hands. The Superintendent has decided that a payment 
i)( the school moneys received from the commissioners of com- 
mon schools to teachers not qualified as required by the statute, 
is not a payment in law, and that the trustees making such 
payment will be answerable to their successors in office, under 
section 102, page 486, 1 R. S. for the amount so paid, as an 
impaid balance remaining in their hands. 

It is hereby ordered, that the appeal of the trustees of school 
district No. 2 aforesaid, from the decision of the commissioners 
of common schools of Granby, in refusing to apportion to said 
district a part of the public moneys for the year 1835, be, and it 
is hereby, dismissed. 

The Inhabitants of school district No. 5 in the town 
of Hornby, ex parte. 

Taxes must be paid in money. 

In this case a tax was voted for building a school-house, witli 
a direction to the trustees that any person who might furnish 
materials should be credited on the tax-list for the value of the 
materials so furnished, in reduction of the amount of his tax. — 
The Superintendent was desired to state whether such a proceed- 
ing was legal. 

By John A. Dix, Mai/ 20, 1835. Taxes must be collected 
in money from all the persons liable to pay them. No man can 



246 CASES DECIDED BY THE 

be allowed to commute by furnishing materials for a school- 
house. But if any individual furnishes materials, he is entitled 
to a fair compensation in money for them; so that, in fact, al- 
tliough he must pay his money to the collector he will receive it 
back from the trustees. At the same time it is necessary to pre- 
serve the regular form of proceeding, and the collector is entitled 
to his fees on the whole amount of the tax if he can collect it. 

The Commissioners of Common Schools of the town 
of Henderson, ex parte. 

Every person set off to a new district is entitled to his share of the value of the 
school-liouse from which he is taken, whether he has contributed to its erec- 
tion or not. 

The commissioners of common schools of the town of Hen- 
derson, intending to divide a school-district and form a new one, 
applied to the Superintendent to kiiow whether it was proper to 
allow to persons set off to the new district, any portion of the 
value of the school-house, if they had not contributed to its 
erection. 

By John A. Dix, May 29, 1835. Whenever a new school 
district is formed, it is entitled to receive from the district from 
which it is taken, a portion of the value of the school-house and 
property of the latter. The proportion is to be ascertained by a 
comparison of the value of the taxable property of the persons 
set off to the new district, with the amount of the taxable pro- 
perty of the persons remaining in the old district or districts, out 
of which the new one is formed. This is the course required 
by law" to be pursued ; and although it may, and doubtless does, 
sometimes operate unequally and imfairly, it irmst be adhered to. 
Thus a person set off from an old district to a new one, at the 
time of tiie formation of the latter, will carry to the new one 
for his own benefit a portion of the value of the school-house of 
the old district, ali.liough he may have become a member of the 
old district after the school-house was built, and thus contributed 
nothing to its construction. The operation of the law, as I 
have aheady said, may in some cases, prove inequitable*, but 
the only remedy is for the commissioners in such cases to abstain 
from forming a new district, unless the persons situated as above 
mentioned voluntarily rehnquish their claim to a benefit to which 
they are not entitled on principles of equity. If the commis- 
sioners go on and form the district, the matter is beyond their 
control and the requirements of the law must be complied wit h. 



SUPERINTENDENT OF COMMON SCHOOLS. 247 

The Trustees of school district No. 5 in the town of 
Belfast, ex parte. 

Trustees are answerable only for such moneys as come into their hands. 

in October, 1833, A, B and C were elected trustees of school 
district No. 5 in the town of Belfast. A received the public mo- 
ney apportioned to the district in April, 1834, and jjaid B five 
dollars, wtiich by an understanding between them at a subse- 
quent time was to be passed to the credit of A on a jirivate ac- 
count between them. A subsequently aljsconded with the ba- 
lance of the public moneys in his hands. Under these circum- 
stances the direction of the Superintendent was requested by the 
successors in office of A, B and C. 

By John A. Dix, June 3, 1835. There is no remedy for 
the defalcation of A, He is personally liable ; but if he has ab- 
sconded and cannot be reached, the money in his hands will be 
lost to the district, as his colleagues are answerable only for so 
much as they severally received- 

The five dollars paid by A to B can be recovered of the latter. 
If it was paid to him as public money, the subsequent agreement 
to pass it to the credit of A on a private account is not only ille- 
gal but fraudulent in both parties. If the facts alleged can be 
proved, B should be prosecuted immediately for the five dollars, 
as an unpaid balance 'remaining in his hands, by the present 
trustees o( the district. He had better pay it, and save costs. 

The Trustees of school district No. in the town 

of Solon, ex parte. 

It' tlie votes of the individuals in favor of a site for a school-house, are piocured 
by appeals to their pecuniary interests, the proceedings will be set aside. 

In this case a vote was taken at a meeting of the inhabitants 
of the district to change the site of the school-house. The vote 
was passed by a majority of two, and it was alleged that two 
persons who were opposed to the removal of the school-house 
voted in favor of it. 

By John A. Dix, Jane 20, 1835. If the district has been al- 
tered, and the alteration has actually taken effect when the vote 
to change the site is given, a majority of votess is sufficient. But 
if that majority has been procured by appealing to the pecuniary 
interests of one or more voters, as by offering to pay their tax if 
they will vote in a particular manner, I should most certainly, 
on proof of the facts, set aside the proceedings. All such bar- 
gains are fraudulent and corrupt. In school district concerns, 
as in all other cases, the exercise of the right of sufl^rage should 
be unbiassed and free from all pecuniary influences. 



248 CASES DECIDED BY THE 

The Trustees of joint school district No, 6 in the 
towns of Tyrone and Barrington, against the Com- 
missioners of Common Schools of the town of 
Barrington. 

A school district repor.tefl to the Superintendent from the year 1822 to 1S35 was 
held to have a legal existence, though the record of its organization was sign- 
ed by only one of the commissioners of common schools. 

The consent of the trustees of a joint district to an alteration, does not authorize 
the commissioners of one towi) tp make it without the concurrence of the com- 
missioners of the other. 

The facts of this case are stated in the order of the SuperiB- 
tendent. 

By John A. Dix, June 22, 1835. This is an application 
to the Superintendent of Common Schools from the trustees 
of joint school district No. 6, lying partly in the town of Tyrone 
and partly in the town of Barrington, for some direction in the 
matter of the proceedings of the commissioners of common schools 
of the last mentioned town, in refusing to apportion to said dis- 
trict, out of the public moneys belonging to the town, the amount 
it was entitled to receive under an order of the Superintendent, 
dated the 12th day of June, 1834.* To this application an an- 
swer has been made by the said commissioners; and although 
the matter in dispute has been disposed of, after full considera- 
tion, by the order referred to, he will proceed to state his views 
in relation to the reasons assigned by the commissioners for diso- 
beying his directions. He is desirous that no misapprehension 
should exist as to the opinion which he entertains with regard 
to the position they have thought proper to take. To facilitate 
a correct understanding of the questions at issue, it will be ne- 
cessary to enter into a brief detail of the circumstances connect- 
ed with the organization of district No. 6, and the changes which 
it has undergone at subsequent periods of time. 

District No. 6 was organized as a school district lying wholly 
in the town of Wayne in the county of Steuben, on the 15th 
April, 1817. Although the language of the order imports that 
it had the concurrence of the commissioners of common schools 
of the town, and although a description and designation of the 
boundaries of the other school districts in the town were given in 
the same order, it appears by the records of the town to be 
signed by only one of the commissioners. 

On the 9th day of June, 1819, the commissioners of common 
schools of the town of Wayne, made a new designation of the 

* See the case of the trustees of joint school district No. 6 in the towns of Ty- 
rone and Barrington, against \\\e commissioners of common schools of the latter 
town, page 172. 



SUPKRINTENDKNT OF COMMON SCHOOLS. 249 

boundaries of some of the school districts in the town, by an or- 
der commencing as follows : " We, the commissioners of com- 
mon schools, in and for the town of Wayne, have this 9th day 
of June, 1819, altered the boundaries of the following school dis- 
tricts in manner following," &c. Among the districts thus 
altered is No. 6, the boundaries of which are minutely described, 
rx)nimencing at a given point and following the outlines of the 
district to the place of beginning, The order is signed by two 
of the commissioners of common schools, and is recorded by the 
town clerk. 

By an act of the legislature, passed the 16th day of April, 
1822, (laws of 1822, chapter 237,) the town of Wayne was di- 
vided, and the towns of Barrington and Tyrone formed out of 
parts of it. By virtue of this act, which took effect from the last 
day of February, 1823, district No. 6 became a joint district of 
the towns of Barrington and Tyrone, as its territory was includ- 
ed partly within the boundaries of each of those towns. 

On the 5th day of January, 1833, the commissioners of com- 
mon schools of the town of Barrington, formed a new school dis- 
trict under the name of district No. 8, to which they assigned or 
set off all that part of joint district No. 6, which was included 
within the boundaries of the town of Barrington. The trustees 
of joint district No. 6 gave their consent in writing to the forma- 
tion of district No. 8 in Barrington, but the commissioners of 
common schools of the town of Tyrone did not concur in the al- 
teration of No. 6, nor does it appear that any attempt was made 
to procure their attendance. 

By the order of the Superintendent of Common Schools bearing 
date the twelfth of June, 1834, it was decided " that the proceed- 
ings of the commissioners of common schools of the town of 
Barrington, in annexing to school district No. 8 certain inhabi- 
tants belonging to joint district No. 6 in Barrington and Tyrone, 
on the 5th January, 1833, are void and of no effect, and that 
said inhabitants still belong to said joint district." It was also de- 
cided that the commissioners of the town of Barrington should 
apportion to joint district No. 6 out of the next public moneys 
which should come into their hands, the sum which said district 
should have received on the first Tuesday of April, 1834, accord- 
ing to the principles of the decision then pronounced. 

The directions contained in this oider have been set at defi- 
ance by the commissioners of Barrington. They have not 
brought up the question thus disposed of for a re-consideration 
upon an allegation of errors in the facts or arguments on which 
the decision of the Superintendent was founded, nor have they 
made any application to him for a rehearing, with a view to the 
production of newly discovered evidence. On the contrary, they 



250 CASES DECIDED BY THE 

have wholly disregarded his order and refused to obey the direc- 
tions contained in it, although his decisions are declared by law 
to be final in all matters of controversy relating to common 
schools, which are brought before him for adjudication. 

Before entering into an examination of the reasons assigned 
by the commissioners for the course they have taken, it may not 
be improper to refer to the objections raised by them to the relief 
asked for in this case, on the ground that the apphcation was 
not made within thirty days after their refusal to apportion to 
joint district No. 6 its proper share of the public money accord- 
ing to the principles of the Superintendent's decision. In ordi- 
nary cases, the established rule would be enforced, and the ob- 
jection so far entertained, as to require the applicants to show a 
sufficient reason for their failure to comply with the regulation. 
But in this case it cannot be allowed to prevail even to the ex- 
tent referred to. The limitation of time by the regulations of 
the Superintendent in matters of appeal brought before him, is 
not intended to apply to proceedings void for want of jurisdic- 
tion, or to cases of refusal on the part of those who are concerned 
in the administration of the common school system, to execute 
his decisions. In all such cases the parties injured will be al- 
lowed to seek redress at any time, provided the rights of others 
are not prejudiced by the delay, and that the application for re- 
lief is not barred by express provisions of law. In the case un- 
der consideration, the apphcants addressed a letter to the Super- 
intendent soon after the decision complained of was announced 
by the commissioners, not supposing that the occasion was such 
a one as to call for an appeal in the usual manner ; and it is by 
the advice of the Superintendent that the application is made in 
its present form, and with the understanding that the lapse of 
time, which occurred in writing to him and i eceiying his answer, 
would not be permitted to operate to their prejudice. 

In the answer of the commissioners to the appeal which led 
to the decision contained in the Superintendent's order of the 
12th June, 1834, it was not alleged that the organization of 
joint district No. 6 was defective in its origin. The legal exist- 
ence of the district was not at that time directly impeached. 
But it is now contended that inasmuch as the order of the 15th 
April, 1817, forming that district, was signed by only one of 
the commissioners, the district was not legally organized, and 
that it has not since that time acquired a legal existence. In 
reply to this argument, it is sufficient to say, that the provision 
in the act of the 15th April, 1814, laws of 1814, chap. 192, sec. 
11, requiring the commissioners of common schools immediately 
after the formation or alteration of any school districts to describe 
and number the same, and to deliver the description and num- 



SUPERINTENDENT OF COMMON SCHOOLS. 251 

ber thereof in writing to the clerk of the town, to be by the lat- 
ter recorded in the town records, is merely directory to those offi- 
cers ; and the Superintendent has frequently decided, that the 
failure of the commissioners to describe a district in writing, or 
the omission by the cleik to put the descrij)tion on record, shoukl 
not be deemed fatal to the existence of the district, if its exist- 
ence as a district for a length of time could be proved by other 
evidence. This is, it is true, a case of a different character. 
The record is not wanting, but it does not show on its face a 
sufficient authority to form the district. It is however lo be con- 
sidered that eighteen years have elapsed since this proceeding 
was put on record ; that the records in the office of the Secre- 
tary of State show the district to have been regularly reported to 
him b}^ the commissioners of coinmon schools as a legally orga- 
nized district as early as the year 1822 ; that its legal organiza- 
tion has not until now been impeached ; and that the commis- 
sioners do not deny that it has, since the year 1819, held its an- 
nual meetings, made its reports, and received its public )noney 
from the town of Wayne while it belonged thereto, and from 
the towns of Tyrone and Barrington since they have been erect- 
ed, except from the town of Barrington for the last two years. 
The record of the town of Wayne need not be presumed to be er- 
roneous, so far as the organization of the district is concerned; 
but it will be presumed, imder all the circumstances referred to, 
and uj)on the evidence furnished in the annual reports of the 
commissioners of common schools, that the district has a legal 
existence: and as it has for eighteen years complied with the 
requirements of the law, and its rights as a district have been 
acknowledged by all concerned until the occurrence of the pre- 
sent controversy, the Superintendent will not allow its organiza- 
tion to be disturbed excepting in the mode prescribed by law. 
He will not allow the records in his office for a series of years to 
be impeached on the ground that those of the town of Wayne 
are defective in a single instance. So far as questions of bounda- 
ries are concerned, the records of the town with regard to school 
districts must be deemed of the highest authority. But where the 
legal existence of a school district is called in question, and the 
reports of the commissioners of common schools of the town for 
a succession of years show that the district has complied with 
the requirements of the law, that it has been recognized as an 
organized district, and received the public money, equity de- 
mands that the testimony furnished by those reports should pre- 
vail so far as to save and maintain the rights of the district. 

With regard to the order of the 9th June, 1819, altering the 
boundaries of district No. 6 and describing them anew, it is al- 
leged by the commissioners, that as the record of the organiza- 



252 CASES DECIDED BY THE 

tion of the district on the 15th April, 1817, is signed by only one 
of the commissioners of the town of Wayne, and as the con- 
currence of a majority was necessary to give validity to the pro- 
ceedings, the district never had a legal existence, and, as a con- 
sequence, that the act of the commissioners on the 9th June, 
1819, which professed to liave for its object an alteration of the 
district, was null and void, because that which did not previous- 
ly exist could not be altered. Whatever force this reasoning 
might have under different circumstances, it is to be considered 
that the entire boundaries of district No. 6 were on the last occa- 
sion carefully defined, and that the specific alteration made in it 
does not appear except by a comparison of those boundaries with 
those set forth in the order of 1817 under which the district was 
organized. This act would in the absence of the record of 1817, 
afford presumptive proof of the legal organization of the district 
at a previous time. It is now deemed conclusive, as far as 
the admission of the commissioners is concerned, with regard to 
its legal existence at the time of the alteration. With what pro- 
priety can they or their successors come in and deny that the 
district had a legal existence, when the act of altering it clearly 
admitted its existence? The order in question contained a new 
specification of boundaries, not in No. 6 alone, but in several 
other districts. An extension or contraction of the boundaries of 
one school district necessarily involves an alteration of the boun- 
daries of one or more adjacent districts ; and from the time the 
order of 9th June, 1819, was issued, district No. 6, and all the 
other districts affected by the alterations contained in the order, 
were considered legally organized districts with the limits then 
defined. The commissioners are, therefore, concluded by their 
own acts from denying the legal existence of any of these dis- 
tricts ; and they are also estopped from objecting that district No. 
6 was not formed in the manner presciibed by law by the re- 
ports of their predecessors, in which it is returned to the Super- 
intendent of Common Schools as a regularly organized district. 
It is also objected that the consent of the trustees of district 
No. 6 does not appear to have been given to the alteration made 
on the 9th June, 1819: that there is no evidence of notice lo the 
trustees that the alteration has been made as required by law 
when such consent is not obtained ; and that the proceedings 
were null and void on these grounds. By referring to the laws of 
the state in relation to the common schools passed at various peri- 
ods, the commissioners will perceive that neither the consent of the 
trustees nor a notice to them was required when the alteration 
referred to was made. The act making such consent or notice re- 
quisite was passed on the 12th April, 1819 ; but it was provided by 
Uie 37th section of that act that the acts of April 15, 1814, and 



SUPERINTENDENT OF COMMON SCHOOLS. 253 

April 18, 1815, should be repealed from the first day of July' 
then next en.^uing; and that all acts done under the provisions 
o( the laws referred to, until the 1st of July should be and con- 
tinue thereafter good. The alteration in district No. 6, to which 
exception is at this late day taken, for want of evidence of the con- 
sent of, or notice to, the trustees, was made on the 9th of June, 
1819, under the act of April 15, 1814; and by the 11th section of 
this act commissioners of common schools had power to alter 
school districts in their respective towns, between the 10th of April 
and the 10th of June in each year, without the consent of the 
trustees, and without any notice to them. There was, therefore. 
a strict compliance with the requirements of the law in this re- 
spect, so far as the facts are disclosed. 

The consent of the trustees of joint district No. 6 to the alte- 
ration which was made by the commissioners of the town of 
Harrington on the 5th of January, 1833, could not give the lat- 
ter jurisdiction. The law has prescribed the manner in which 
a joint district shall be altered. Each town of which the district 
is a part is concerned in its preservation, and it is only with the 
consent of the commissioners of common schools of each town 
that its boundaries can be enlarged or diminished, excepting 
where the commissioners of one town refuse or neglect to meet 
the commissioners of the other, when their attendance has been 
required. The trustees could not, by consenting to the altera- 
tion, enable the commissioners of Barrington to act alone, and 
thus divest the commissioners of Tyrone of the right which the 
law gives them, of passing judgment upon the proposed measure. 
Nor Vkili it be presumed that such was the intention of the trus- 
tees. On the contrary, the only legitimate presumption which 
can arise from the facts is, that the trustees intended to consent 
to the alteration when it should be made according to the re- 
quirements of the law. 

Under whatever aspect the case is considered the Superinten- 
dent sees no reason for coming to a conclusion difierent from that 
at which he arrived on his first examination of it. Joint district 
I\o. 6 has now the same boundaries which it possessed at the 
time, (previous to the 5th January, 1 833,) when the commissioners 
of Barrington undertook to alter it. That district is entitled to re- 
ceive, according to the principles of the Superintendent's decision 
contained in the order of the 12th June, 1834, out of the public 
moneys apportioned to the town of Barrington the sums which 
were allotted in 1834 and 1835 to district No. 8, on account of 
the children residing in that part of joint district No. 6 which 
lies in the town of Barrington, and which the Superintendent 
has declared to belong to the latter district. The Superintendent 
has no authority by law to enforce the execution of his own or- 



254 CASES DECIDED BY THE 

ders and decisions. The commissioners of common schools, as 
public officers, are amenable to the authority of the supreme 
court, which would, on showing sufficient cause, grant a manda- 
mus requiring them to comply with the directions of the Superin- 
tendent, and allow an attachment against them to issue in case of 
refusal. Having exhausted his powers, the Superintendent can 
only refer the trustees of joint district No. 6 to that tribunal for 
relief, in case the commissioners refuse to carry his order into ex- 
ecution, with the assurance that any aid which it is in his power 
to lend will be freely afforded in the prosecution of the necessary 
remedies. 

(anonymous.) 

Trustees are svnle judges of the ability of a person to pay his school bills. 
A resident cannot be prosecuted by trustees tor a tax or for tuition bills. 

By John A. Dix, June 22, 1835. The trustees of school 
districts are the sole judges of the ability of the persons residing 
within their respective districts to pay their school bills. 

With regard to residents there is no power to prosecute. The 
warrant annexed to the tax list or rate bill may be renewed with 
respect to residents, and with respect to non-residents a prosecu- 
tion may be commenced by the trustees, if they refuse to pay, 
and no goods and chattels can be found within the district on 
which to levy or distrain. A resident cannot be prosecuted. 
The only remedy against him is by distress and sale of his goods 
and chattels. Rate bills as well as tax lists are now collected by 
distraining, where the party assessed does not pay voUmtarily. 

A court would not, on a prosecution for a tax or a tuition bill 
allow the party to prove his inability to pay. If the trustees 
have exempted him from the payment, it is a complete defence. 
But if they have not so exempted him the court would be bound, 
on showing the debt, to give judgment against him for the 
amount. His inability to pay is a matter to be tried by the exe- 
cution of the warrant, or the execution on a judgment rendered 
by a court. If he has no goods and chattels, of which a levy or 
distress can be made, the matter is ended. If he has, he is clear- 
ly not unable to pay, and this is a question a court cannot deter- 
mine in anticipation of such a test. The trustees might so de- 
termine it, and when they have done so, by refusing to exempt 
him, the test must be by the warrant, or by execution where a 
judgment is obtained in a suit brought by the trustees. 



SUPERINTENDENT OF COMMON SCHOOLS. 255 

The Trustees of school district No. 20 in the town 
of New-Paltz, against the Commissioners of Com- 
mon Schools of said town. 

The bad management of the affairs of a district is not a sufficient reason for set- 
ting off an inhabitant. 
A district ought not to be altered for the temporary convenience of an individual. 

The facts of this case are given in the Superintendent's order. 

By John A. Dix, June 24, 1835. The Superintendent of 
Common Schools has examined the appeal of the trustees of 
school district No. 20 in the town of New-Paltz, from the pro- 
ceedings of the commissioners of common schools of said town, 
in setting off Josiah Dubois from said district to district No. 14, 
on the 31st day of March last. The Superintendent has also 
examined the answer of the commissioners to said appeal, and 
the accompanying affidavit of Josiah Dubois, setting forth his 
reasons for desiring to be annexed to district No. 14. 

The principal reasons assigned by Mr. Dubois for desiring to 
be set off from No. 20 are; 1st, That the afiairs of the district 
are badly managed; and 2d, That the school-house in No. 14 
is near the New-Paltz academy, and that as he sends iiis elder 
children to the academy, it is more convenient to send his 
younger children with them to the school-house referred to than 
to send them into No. 20. 

The first of these reasons is wholly inadmissible as a ground 
for setting off a single inhabitant to another district. If the af- 
fairs of a school district are improperly managed, the true remedy 
is to elect new trustees, and confide the trust to abler or more 
faithful hands. If a school-house has an inconvenient position, 
the site should be altered in the mode prescribed by law. But 
it is manifest that if individuals may be set off from one district 
to another for such causes, there would be no assurance that any 
district would retain its organization from year to year. 

The second reason, though it has more weight, is not, in the 
opinion of the Superintendent, sufficient to warrant a change in 
the boundaries of a school district. The condition of Mr. Du- 
bois' family is accidental, and can be but temporary. The time 
will come, and it may be near at hand, when his older children 
will have completed their education and his younger children be 
old enough to attend the academy. If this were now the case, 
he would have no interest in being set off from district No. 20. 
If he were to remove from hie present residence, and an inhabi- 
tant were to succeed him with children too young to be sent to 
the academy, the latter would undoubtedly desire to continue in 
No. 20, as the school-house is much nearer than that of district 
No. 14. The organization of school districts should not be disturb- 



256 CASES DECIDED BY THE 

ed for light or temporary causes. As population increases and set- 
ttement extends, alterations in their boundaries frequently be- 
come necessary. But a single individual ought not to be set off 
from one district to another for his temporary accommodation, 
excepting in cases where the condition of the two districts to be 
affected by the change concurs in demanding it. 

Let us see whether this case comes within the class of excep- 
tions referred to. 

District No. 20 has a taxable property of S48,641, and 63 
children lietweeii 5 and 16 years of age. If Mr. Dubois shoald 
be set off to district No. 14 from No. 20, the latter wfll be' re- 
duced to 59 children betwe'en the ages referred to, and to a taxa- 
ble property of $42,491, and the former will have 71 children 
and $102,526 of taxable property. Although both districts 
would, alter the alteration, be capable of maintaining a respecta- 
ble school, the circumstances of the case are not, in the opinion 
of the Superintendent, so strong as to warrant a change, which 
is on its face unequal as between the two districts. 

The Superintendent regrets that he is compelled to differ with 
the commissioners of common schools in the view he has taken 
of this case. But. after conceding to them the advantage of a 
more familiar acquaintance with the local condition of the dis- 
tricts and the parties interes-ted in the matter submitted to him, 
he cannot, consistently with the principles which have govern- 
ed his decisions in like cases, confirm their proceedings. He 
has no doubt that they have acted in obedience to the sugges- 
tions of duty, and under the conviction that Mr. Dubois might 
be accommodated without prejudice to the just rights of district 
No. 20. But after giving to every case presented to him the best 
examination of which he is capable, he is bound, like them- 
selves, to act in accordance with his own convictions of duty. 

The proceedings referred to are set aside, and Mr. Josiah Du- 
bois is restored to district No. 20. 

The Commissioners of Common Schools of t^e town 
of Cohocton, ex parte. 

Trustees are bound to send or deliver their annual reports to the town clerk. 
Quere ? Whether two commissioners can make a valid apportionment of the school 

moneys .- 
An apportionment of the school moneys after the time prescribed by law is good. 

In this case the trustees of a school district handed the annual 
report to one of tlie commissioners of common schools, who ne- 
glected to attend the meeting for the apportionment of the pub- 
lic moneys. The moneys were apportioned by two of the com- 
missioners, and tl>e report of the district referred to being in the 



SUPERINTENDENT OF COMMON SCHOOLS. 257 

hands of the absent commissioner, no money was allotted to 
the district. The opinion of the Superintendent as to the legali- 
ty of these proceedings was solicited. 

By John A. Dix, June 30, 1835. It is the duty of the trus- 
tees of school districts to deliver their annual reports to the 
town clerk, (sec. 92, page 484, 1 R. S.) who is, by the provisions 
of sub. 1, of sec. 43, page 474, 1 R. S. authorized, and indeed 
bound as a matter of duty, to " receive and keep all reports made 
to the commissioneis from the trustees of school districts," &.c. 
The mere delivery of a report to one of the commissioners would 
not, I should think, make him legally liable for any loss which 
might result to a district from a failure or omission on his part to 
present it at the meeting of the commissioners, on the first Tues- 
day of April, for the apportionment of the public moneys. The 
trustees themselves are in default for putting it into his hands ; 
they should deliver it to the town clerk, and in order to make the 
commissioner, with whom it is left, responsible, it would be ne- 
cessary to show a special undertaking on his part to have it pre- 
sented to the commissioners at their meeting to distribute the 
public mone3's. 

The question whether two of the commissioners of common 
schools^ without the attendance or consent of the third, can le- 
gally apportion the public moneys is a delicate one, and may 
fairly give rise to a difference of opinion. If the third commis- 
sioner has notice of the meeting and his attendance is required, 
and from any unavoidable circumstance he is unable to attend, or 
if he absolutely refuses to attend, I think an apportionment by 
the other two having knowledge of the facts, would be valid.* 
It seems to me, however, that it is useless to raise this ques- 
tion in the present case. The moneys have been apportioned, 
and probably for the most part expended by this time. To agi- 
tate the question of authority to make the apportionment can, 
clearly, answer no purpose of justice or equity. An apportion- 
ment may, under certain circumstances, be made after the first 
Tuesday of April. The specification of time is not intended to 
limit the exercise of the authority of the coinmisssioners. The 
statute is directory to them ; but if the apportionment from any 
cause is not made on the day specified, it may be made subse- 
quently, and the proceeding will be deemed valid. 

* See a case decided 23d July, 1835, next page. 

17 



258 cases decided by the 

(anonymous.) 

Rate bills for teacher's wages should be promptly made out and collected. 

Trustees must make out rate bills from the lists kept by the teacher. 

If one of the trustees refuses to unite in making out a rate bill, the other two 
may act without his concurrence. 

if a warrant for the connection of a tax is signed by two trustees only, the pre- 
sence of the third at the issuing of the warrant will be presumed. 

By John A. Dix, July 23, 1835. There is no provision of 
law by which a rate bill for teacher's wages is required to be 
made out at the expiration of his term. All school bills should 
be promptly made out and paid, but the time is not limited by 
law. The teacher must deliver the list of scholars and their 
attendance kept by him to the trustees, and the latter must 
make out the rate bill and annex to it their warrant for its col- 
lection. If one of the trustees refuses to unite in making out 
the bill, or to pay his part of it, the other two may act, and 
die amout due may be collected of him as of any other individuaL 
The supreme court has decided in the case of McCoy vs. 
Curtice, 9 Wendell 17^ that a contract made by all of the trus- 
tees of a schod. district, and " signed by two, would be binding ; 
or that two could contract against the will of the third, if he 
was duly notified or consulted, and refused to act." The deci- 
sion of the court seems also to sustain the doctrine, that if a war- 
rant be issued by two trustees for the collection of a tax, the pre- 
sence of the third at the issuing of the warrant will be presumed 
until the contrary be shown. 

The Commissiotters of Common Schools of the town 
of Fort-Edward, ex parte. 

Ck»mmissioners of common schools may certify that more than $400 is necessary 
for a school-house, after that sum has been expended. 

The inhabitants of a school district in the town of Fort-Ed- 
ward voted a tax of $400 to build a school-house. The tax 
was raised and expended, and the amount was found insuffi- 
cient to finish the building. The trustees of the district then 
called on the commissioners of common scliools to certify that 
an additional sum was necessary, in order to procure a vote of 
the inhabitants to levy it. The commissioner desii'ed to be in- 
formed whether they had authority to make the requisite eerti- 
licate in such a case. 

By John A. Dix, August 15, 1835. The commissioners 
of common schools have an undoubted right, under section 64 
of the statute entitled "Of common schools," to certify that a 
larger sum than four hundred dollars is necessary and ought 
to be raised for the purpose of building a school-house, in cases 
where that amount has been already expended. In the rase 



SUPERINTENDENT OF COMMON SCHOOLS. 259 

Stated in your letter, the true course would be, if the propriety of 
the measure is clear, to grant a certificate setting forth that the 
sum of four hundred dollars has been expended on the school- 
house, that a further sum (specifying it) is necessary to complete 
it, and that such sum ought to be raised for the purpose. On 
the exhibition of this certificate at a special meeting of the in- 
habitants of the district, they may vote the additional sum spe- 
<:ified. 

It is always desirable that the amount to be expended should 
he clearly ascertained before the building is commenced, in order 
that the full sum required may be stated to the inhabitants be- 
fore they are committed to any expenditure whatever. At the 
same time the most judicious calculations may be disappoint- 
ed ; and as the authority of the commissioners in the matter 
referred to is not restricted to any particular point of time or any 
particular stage of the proceedings, I consider them fully em- 
powered to act in the case stated by you. The inliabitants 
of a district cannot, of course, vote a sum exceeding 400 dollars 
for a school-house until after the commissioners have made the 
necessary certificate. 

The Trustees of school district No. 8 in the town of 
New-Haven, against the Commissioners of Com- 
mon Schools of said town. 

in apportioning the value of a school-house when a new district is formed, the 
omission of one of the persons set off cannot be made a ground of objection 
to the proceeding by an inhabitant of the old district. 

. i'a written notice of the time, place, and object of a meeting called to organize 
a school district, is left at the house of one of the inhabitants in his absence, 
all the others being notified according to law by personal service of the notice, 
it is sufficient, though the notice so left does not show that the meeting is call- 
ed by the commissioners of common schools. 

%i through an erroneous impression as to the title to the site of the school-house, 
th« commissioners appraise it at too low a sum, the proceeding is riot void, but 
may be vacated on an appeal. 

Trustees are not entitled to notice of an appraisement until after it is made. 

In forming a new district, notice of the alteration may be served on a trustee 
set off to the new district. 

Jf all the persons set off to a new district relinquish their interest in the school- 
house ifi the old district, it need not be appraised. 

This was a statement of facts submitted by the commissioti- 
^Ms of common schools of the town of New-Haven and the trus- 
tees of school district No. 8 in said town, for the Superintendent's 
opinion. By this statement it was shown that on the 11th of 
November, 1834, the commissioneis of said town divided scliooi 
'districts No. 3 and 5, and formed a new district under the desig- 
wation of district No. 8, from parts of those districts. The school- 
fiouse in each district was appraised, and an order made out and 



260 CASES DECIBED BY THE 

directed to the trustees requiring them to levy on their respective 
districts the amount to which No. 8 was entitled. A notice for 
a meeting of the inhabitants of the new district was issued, the 
meeting was held, and the district organized. 

The objections to these proceedings were as follows : 

1. One of the inhabitants of school district No. 3 was omitted 
in apportioning the value of the school-house between that dis- 
trict and the new one. In consequence of this omission the new 
district received a less amount, by a very trifling sum, than it 
was entitled to receive from No. 3. No exception was, however^ 
taken by the new district, nor by the inhabitant to whose credit 
the small sum thus lost would have been passed. 

2. In serving the notice issued by the commissionei's for the 
first meeting in the new district, the person serving it not finding- 
one of the inhabitants at home, left a note at his house inform.- 
ing him that a meeting was to be held at a certain time and place 
to organize the district, but without stating that the commission- 
ers of cominon schools had called the meeting, 

3. When the commissioners apportioned the value of the 
school-house in district No. 3, they supposed the site was held 
under a lease for so long a time as the district should use it as 
such ; but it was ascertained subsequently that the fee was in 
the district. Had this fact been known to the commissioners at 
the time they iitade the valuation, they would have put a higher 
estimate upon the value of the lot. 

4. The trustees of districts No. 3 and 5 were not informed of 
the anwunt of the valuation of the school-houses until notice of 
the alteration! was served on them. 

5. Notice of the alteration was served on one of the trustee>s 
of No. 5 who resided within the territory set off to form the new 
district. 

By John A. Dix, September 18, 1835. I have carefully 
examined the statement of facts submitted to me, and am of 
opinion that the proceedings of the commissioners of common 
schools in the organization of your school district (No. 8) were 
legal. Certainly it does not appear to me that there will be any 
hazard in going on and collecting any tax which may be final- 
ly imposed on the district.* 

The omission of one of the inhabitants of No. 3, who was sec 
off to No, 8, in the assessment of the value of the school-house 
and property of the former, is not a good ground of objection or> 

* In the case of Reynolds v^s. Moore, 9 Wendell, 35, the Supreme Court de- 
cided that in an action of trespass against a collector for taking and selling pro* 
perty under a warrant regiilarly issued by the trustees of a school district, the 
plaintiff would not be allowed to show that all the forms prescribed by the statute 
had not been observed in organizing the district. 



SUPERINTENDENT OF COMMON SCHOOLS. 261 

ihe part of any inhabitant of No. 3 as now organized, for the 
omission was not an injury to that district. Such an objection 
can only be raised by some person aggrieved, i. e. some inhabi- 
tant of the new district. 

The notice given by the person who was required to notify 
the inhabitants of the new district to meet and organize, was 
sufficient. The notice set forth the time, place and object of the 
meeting, and this is all the law requires. 

The erroneous impression which prevailed with regard to the 
tenure of the site of the school-house at the time the appraise- 
ment was made, does not impair the legality of the appraise- 
ment. It might be a good ground of application to the Super- 
intendent to order a new one ; but the appraisement now made 
cannot be set aside in any other manner. 

Trustees need not be notified of the appraisement of the pro- 
perty of their district previous! to the formation of a new district 
out of a part of it. It is desirable that they should know when 
the commissioners meet for the purpose of forming the district ; 
but an omission to notify them does not affect the validity of the 
proceedings. 

It makes no difference whether notice of an alteration made 
without the consent of trustees, is served on a trustee residing 
within the territory remaining in the old or that set off to the 
new district. He continues to be trustee of the former until three 
months after service of such notice. 

When all the inhabitants of a new district voluntarily relin- 
quish their right to a portion of the value of the school-house and 
property of the district from which they are taken, an appraise- 
ment is unnecessary. The appraisement is to be made ior their 
benefit, and if they relinquish their right, there can be no reascu 
for making the appraisement. 

(anonymous.) 

•Commissioners of common schools cannot fix a site for a school-house. 

If the inhabitants agree that the commissioners may select a site, the selection 
ought to be acquiesced in. 

A district may repeal a vote to raise a tax if no proceedings haye been commenc- 
ed m pursuance of such vote. 

By John A. Dix, September 19, 1835. Commissioners of 
common schools have no authority to fix a site for a district 
school-house under any circumstances. The inhabitants of a 
district may, for the purpose of ending a controversy, agree to re- 
fer the matter to them ; but in such a case they would act as in- 
dividuals, and not as official agents of the town or the district, 
nor would their decisions under such circumstances be final- 
Sites can only be fixed by vote of the inhabitants, and it appears to 



262 CASES DECIDED BY THE 

me that such a vote is necessary after the commissionei-s have 
selected a point for a site, on a reference of the matter to them, 
in order to give the proceeding validity and make the site legaL 
The inhabitants ma}^, after agreeing to such a reference of the 
question, refuse to ratify the selection or determination of the 
commissioners. I speak now of the legal right. But certainly 
after consenting to such an arrangement to terminate a contro- 
versy, good faith demands that they should abide the result. 

The inhabitants of a district have a right to reconsider former- 
proceedings, and repeal them if they think proper. They may 
legally repeal the vote of a tax to build a school-house, if no pro- 
ceedings in relatiorj to its collection have been commenced, and 
no contracts entered into or responsibilities assumed by the trus- 
tees in behalf of the district in pursuance of such vote. 

(anontmcws.) 

Fersoils worth fifty dollars may vote and must be taxed, though they may hav& 

been omitted in the town assessment. 
It may happen that persons not liable to be taxed in a school district, are entitled; 

to vote to raise taxes on the district. 

By John A. Dix, September 24, 1835. It is submitted whe- 
ther persons not on the assessment roll of the town, who have 
personal property of the valire of fifty tlollars over such as is ex- 
empt from execution, may be taxed, or may vote at school district 
meetings? Such persons are undoubtedly liable to contribute 
feheir proportion of any tax levied on the district for commors 
school purposes^ and should be included in the tax list made out 
by the trustees in every such case, although they may have been 
omitted in the assessment roll of the town. They are also en- 
titled to vote if they have personal property, over such as is ex- 
empt from execution, to the amount of fifty dollars liable to tax- 
ation in the district, whether they are iacluded in the town as- 
sessment or not. So it may happen that persons in a school dis- 
trict may be entitled to vote to lay a tax on it, although thev 
cannot be compelled to pay any part of it, as persons who have- 
paid a highway tax, birt have no taxable property. 

The Clerk of school district No. 4 in the tows of 
Colesville, ex parte. 

School district libraries are designed both for those who have completed their 
common school education and those who have not. 

The inhabitants of schoo} districts may appoint a hbrarian, and adopt regulations 
for his government. 

In the selection of books^ sectarian and controversial subjects should be exclud- 
ed. 

This was an application to the Superintendent for information 



SUPERINTENDENT OF COMMON SCHOOLS. 263 

with respect to the law authorizing the inhabitants of school dis- 
tticts to raise money to purchase common school libraries, with 
the request that he would furnish a catalogue of books suitable 
for the purpose, and a system of regulations for the government 
of the librarian. 

By John A. Dix, October 25, 1835. In reply to your in- 
quiries, I do not see that I can at this moment say more than 
this, that the establishment of school district libraries was design- 
ed for the benefit of all the inhabitants of the district, 3rouths as 
well as adults. 

The act authorizing the establishment of school district libra- 
ries was passed in pursuance of a recommendation contained in 
my annual report, as Superintendent of Common Schools, for 
the year 1834. The annexed extract from that report will ex- 
plain my own views on this subject, and furnish ground of in- 
ference with regard to the intention of the legislature. You will 
perceive that one of the contemplated objects was to furnish the 
means of improvement to those who have finished their common 
jichool education as w^ell as to those who have not. 

^^ If the inhabitants of school districts were authorized te lay a 
tax upon their property for the purpose of purchasing libraries for 
the use of the districts, such a power might, with proper restric- 
tions, become a most efficient instrument in diffusing useful 
knowledge and in elevating the intellectual character of the peo- 
ple. By means of the improvements which have been made in 
tfie art of printing, a volume bound in boards, containing as 
much matter as the new testament, can be sold at a profit for 
ten cents. The sum of ten dollars would, therefore, furnish a 
school district with one hundred volumes, v.'hich might be kept 
\mder such regulations as the inhabitants should adopt for their 
common use. A vast amount of useful information might in 
this manner be collected, where it would be easily accessible, and 
its influence could hardly fail to be in the highest degree saluta- 
ry, by furnishing the means of improvement to those who have 
finished their common school education, as well as to those who 
have not. The demand for books would ensure extensive edi- 
tions of works containing matter judiciously selected, at prices 
which competition would soon reduce to the lowest rate at which 
they could be furnished. By making the imposition of the tax 
wholly discretionary with the inhabitants of each district, and 
leaving the selection of the works under their entiie control, the 
danger of rendering such a provision subservient to the propaga- 
tion of particular doctrines or opinions would be effectually guard- 
ed against by their watchfulness and intelligence." 

The lav/ authorizes the inhabitants to appoint some person 
to be "the librarian of the district," and to adopt such regula- 



264 CASES DECIDED BY THE 

tions for his government as they may think proper. These re- 
gulations may, from local and other causes, be somewhat diffe- 
rent in different districts; and 1 would not undertake at this 
time to recommend any system as applicable to all cases. The 
great object should be to secure the safe custody and preservation 
of the books, and to give the greatest possible facility to their 
circulation for perusal among the inhabitants of the district. 
The regulations may be few and simple. 

I had intended ere this to procure a list of books for such 
persons as might think proper to ask my advice on this subject, 
but have not yet done so. In a few months purchases may pro- 
bably be made to better advantage than at this moment, as there 
are now in a course of preparation at least two series of publica- 
tions with a view to meet the objects of the law. As a general 
principle I would recommend, that in the selection of books all 
sectarian and controversial subjects should be excluded. It is 
for the inhabitants of the district to choose the works to be pur- 
chased, and it must depend much on their discretion in the exe- 
cution of this trust, whether all the benefits in contemplation of 
the law will be secured. A liberal regard must be paid to opi- 
nions, even though they have their foundation in prejudice. 
With respect to certain subjects, no difference of opinion can 
well exist, so far as unexceptionable works on those subjects aie 
proposed to be purchased. Among them may be enumerated 
History, ancient and modern. Biography, Geography, Natural 
Philosophy, Astronomy, Chemistry, Mineralogy, Botany, Moral 
and Political Philosophy, Political Economy, Agriculture, the 
Mechanic Arts, Statistics, &c. I do not intend this as a com- 
plete enumeration of subjects, but as comprising a class of the 
character above referred to. 

The inhabitants of school district No. 9 in the town 
of Fabius, ex 'parte. 

Commissionei-s of common schools have no authority to receive and decide uj)oq 
appeals from school districts. 

Inhabitants of school districts cannot by a vote to that effect, authorize their trus- 
tees to provide fuel in any other mode than that prescribed by law. 

The following statement was presented to the Superintendent 
for his decision, pursuant to a vote taken at the annual meeting 
in 183.5, in school district No. 9 in the town of Fabius. 



SUPERINTENDENT OF COMMON SCHOOLS. 265 

" School District, No. 9, Fabius, ) 
" Annual meeii?ig; Oct. 5, 1835. ^ 

" To the Superintendent of Common Schools of the State of 
New- York. 

" For a number of years past we have uniformly voted at our 
annual meetings, that the amount of wood used for the winter 
school be put into the school bill, and apportioned according to 
the number of days each proprietor sent, for the purpose of sav- 
ing the trustees the trouble of calling upon each individual to 
furnish his quota of wood, as well as to save each individual the 
trouble of furnishing so small an amount of wood; and further, 
for the purpose of avoiding a new apportionment in the springr, 
as the number of scholars and days proposed vary essentially 
from the number of scholars and days actually sent. 

"At our annual meeting in 1834, the following votes were 
passed : 

" That there be twenty cords of good hard wood, eighteen 
inciies long, furnished for the ensuing year, &c. 

" That E. P. Howe have the contract for procuring the above 
mentioned wood at five shillings per cord, &c. 

" That the bill for wood shall be included in the school bill. 

" At the expiration of the school the trustees made out the bill 
for tuition, and also in a separate column levied the wood on 
the taxable property of the district, and carried out the tuition 
and wood in a ' sum total.' Some of the inhabitants paid their 
bills, and others refused to pay for the wood when assessed on 
taxable property: and as the tax list was not made out in thirty 
days after the vote was taken, the trustees called a special meet- 
ing ' for the purpose of choosing a collector in the place of Fran- 
cis Biatin removed, and transacting such other business as may 
come before said meeting.' Said special meeting was held on 
the 13th day of June last, at which time the following votes were 
passed by a majority of two : 

" That E. P. Howe be chosen collector, (fee. 

" That the vote taken at the last annual meeting relative to 
procuring wood, be rescinded. 

'• That the sum of $15 . 18 be raised by tax on the taxable in- 
habitants of said district, for the wood the winter past and re- 
pairs last spring. 

"The trustees immediately made out the tax list for the wood, 
and gave the twenty days notice required by law when the valu- 
ations cannot be ascertained from the last assessment roll of the 
town ; but previous to the expiration of the twenty days a num- 
ber of the inhabitants of our district appealed from the decision of 
gaid special meeting to the commissioners of common schools of 



266 CASES DECIDED BY THE 

our town, on the ground that the object of the meeting was not 
explicitly stated in the notice ; that if it had been stated in the 
notice that other business would positively come before the meet- 
ing, and especially that a tax was proposed to be raised, some in- 
dividuals would have attended w^ho did not attend. 

"The commissioners of common schools appointed a time for 
hearing the case, and accordingly met at the time appointed. 
After hearing the arguments for and against said appeal, the 
commissioners decided ' that in their opinion the proceedings of 
said special meeting were illegal,' since which time the trustees 
have continued to collect the bill for tuition, but the wood re- 
mains uncollected and unpaid, except a very small share. 

" The objections urged against paying for the wood by a tax 
on taxable property, are the following : 

" 1st. A long standing custom by compromise and general 
consent to the contrary. 

'' 2d. One of the taxable inhabitants of our district since ths 
winter school closed has removed into an adjoining district, and 
is now liable to be taxed there for the property which he held 
here. 

'' 3d. Two taxable inhabitants of our district have moved from 
another county into this district since our winter school closed, 
and paid a tax in that county for school wood the winter past, 
on the same property on which they would now be taxed here, 
the law making it the duty of the trustees to levy the tax on all 
the property owned or possessed in said district at the time of 
making out the tax list. 

" The objections urged against apportioning the wood accord- 
ing to the number of days sent, are the following : 

" 1st. Some of the inhabitants who sent a number of children 
to the winter school, have since removed out of town, and one 
family out of the state, and the wood could not be equitably ap- 
portioned in this way, unless the present residents wdio sent to 
that school should be willing that the wood be paid for by them 
in proportion to the days sent, to which some w^ould not now 
consent. 

" 2d. The teacher of the winter school lost his roll during the 
winter, and it has recently been ascertained that he made out a 
new one ' by guess' or supposition. This fact is now known 
to the district generally, and many who are in favor of having 
the wood apportioned according to the number of days gent, 
might not be willing to pay an account of the defect in the roll ; 
at least some of the district would probably take exceptions on 
that account. 

" It was generally expected that, after the decision of the com- 
missioners, the trustees ^yould either call another special meeting 



SUPERINTENDENT OF COMMON SCHOOLS. 267 

or else make out a tax for the wood in proportion to the number 
of days sent, agreeably to the vote taken at the annual meeting 
last year, neither of which has been done. 

"All parties agree that the individual who furnished the wood 
ought to have his pay, and are anxious to be at peace in the dis- 
trict, but as yet have failed to devise a plan to suit every indi- 
vidual in the district. 

"The trustees contend, that the manner in which wood has 
usually been furnished for the district, is illegal; that the law 
provides only two ways to obtain the wood, and that the district, 
by agreeing in school meetings for a certain quantity of wood at 
a certain price, deprived the trustees of taking the second course 
pointed out in the law, and consequently they were compelled to 
make out the wood tax on the taxable property. 

" On the other hand it is contended, that the uniform course 
heretofore pursued in our district was viitually the second course 
pointed out in the law ; that by common consent it has been the 
opinion of the district generally, that the wood should be appor- 
tioned ' on the scholar,' and that the course usually pursued in 
our district has been resorted to solely for the purpose of saving 
trouble. 

'•' At this, our annual meeting, we have agreed to the forego- 
ing statement of facts, and voted unanimously that it be signed 
by the officers of the meeting, submitted to you for your decision 
thereon, and agree to abide the result. 

'" By order and in behalf of the meeting. 

" JOSIAH ANDREWS, Moderator. 

"Seneca Smith, Clerk. 

" For further information we will state (without particular di- 
rection from the district,) that at this, our annual meeting, we 
have agreed not to furnish wood the ensuing winter by a tax on 
the taxable property of the district, by a vote of 13 to 9, but that 
we will procure the wood in the manner formerly done in our 
district. 

" You are requested not only to decide in what manner we 
shall raise the pay for the wood used last winter under existing 
circumstances, but also to say whether it is legal for us to fur- 
nish our wood as we have usually done, when at school meet- 
ings we surrender into the hands of the trustees our privilege and 
right of being called upon to furnish our quota of wood: the dif- 
ference of opinion never having been about the particular man- 
ner in which wood shall be assessed on the scholar, but whether 
it shall be assessed on the scholar in any w^j, or by tax on the 
taxable property ? 

" You are requested, if possible, to attach your decision to this 
application and return the whole." 



268 CASES DECIDED BY THE 

By John A. Dix, October 28, 1835. I have examined the 
statement of facts presented by you in pursuance of a vote at 
tlie annual meeting for the year 1835, in school district No. 9 
in the town of Fabius, with a view to a decision of the ques- 
tions submitted to me. I cannot comply with your request to 
return the statement. It must be preserved in my office, in con- 
formity with a rule adopted by my predecessor, and invariably 
adhered to by me, with respect to all communications to which 
answers are given. 

The mode in which the trustees undertook to provide for the 
payment of the fuel consumed in your school district last winter, 
was altogether illegal, and it should not be attempted again. 
The amount due for that object might have been included in the 
rate bill, if, on being called on, the inhabitants had not provided 
it, but the proportion to be paid by each inhabitant of the dis- 
trict should have been determined by the number of days his 
children were sent to school, and not by the amount of his tax- 
able property. This is the mode prescribed by law, and there 
can be no excuse for departing from it. 

There is but one way in which the fuel provided last winter, 
can now be paid for, and that is by the collection of the tax vot- 
ed on the 13th June last. I consider the proceedings of that 
meeting legal. The notice for a special meeting should specify 
all the objects of the meeting ; but the omission to set them forth 
does not render the proceedings absolutely void, although it af- 
fords a ground of application to the Superintendent of Common 
Schools to set them aside, on showing surprise on the part of 
any of the inhabitants. If the omission was intentional, the pro- 
priety of his interposition will be still more apparent. But no 
such allegations are made in this case. 

The appeal to the commissioners of common schools was al- 
together unauthorized by law. The Superintendent is the only 
tribunal to which an appeal from the proceedings of school dis- 
trict meetings will lie. 

It appears that a tax levied on the taxable property of the dis- 
trict now, will subject two inhabitants, who have recently mov- 
ed into it, to an imposition from which in equity they should be 
exempt. But this inconvenience cannot be obviated. The fuel 
cannot now be paid for by a rate bill ; and if it could, equity 
would not be done, as some who ought to contribute to that ob- 
ject have removed out of the district, to say nothing of the man- 
ner in which the teacher's hsts were made out. The trustees, 
as the representatives of the district, are answerable for the 
amount of the fuel ; they may be sued ; the amount recovered 
against them would, by the Revised Statutes, be allowed in their 
official accounts; and if they had no funds belonging to the district 



SUPERINTENDENT OF COMMON SCHOOLS. 269 

out of whicli they could indemnify themselves for the amount 
paid by them, the legislature would doubtless direct it to be levi- 
ed on the taxable property of the inhabitants. Thus the result 
would be the same. 

The inhabitants may, if they please, make up the amount 
HOW due for fuel by voluntarily contributing what each one fair- 
ly owes. If they refuse, the tax must be levied on the taxable 
property of the district. The tax list was not made out within 
one month, but there is good cause for the omission in the ap- 
peal, which, though misdirected, must, as was supposed, be deem- 
ed to operate as a stay of proceedings. 

If you provide fuel hereafter, as you have done heretofore, 
there may or may not be difficulty, according to circumstances. 
The established usage in the district, if it be a substantial, is 
not a rigid, compHance with the law. The vote of the inha- 
bitants at the annual meeting, proposes to dispense with that 
provision of the statute which requires the trustees to call on each 
inhabitant for his quota of fuel. It is certainly not binding on 
the trustees, nor does such a vote authorize them to proceed in 
any other manner than that which is pointed out by the law. 
They may still make the call, and strictly it is their duty to do 
so. If they neglect it, and any inhabitant should refuse to pay his 
proportion of the amount due for fuel, I doubt whether the col- 
lection could be enforced against him. It certainly could not, 
unless his consent to the proceeding could be shown. In de- 
parting from the course prescribed by the statute, the successful 
execution of a trust becomes dependent on the acquiescence of 
others; and when a public agent undertakes to enforce an au- 
thority, he should be careful that he has himself taken all the 
steps enjoined on him by the statute, which confers the au- 
thority so to be enforced. The object in giving notices to each 
iiihabitant of the quota of fuel to be provided by him, is to ena- 
ble him to furnish it in kind, if he chooses, and (unless a tax 
is voted,) the right to collect the amount in money does not exist 
until that option has been presented to him in the mode indi- 
cated by the statute. You will perceive, therefore, that you 
will be liable to difficulty whenever an inhabitant thinks proper 
to create it, by refusing to pay for his fuel, and shelters himself 
under the irregular proceeding on the part of the trustees ; for the 
vote of the inhabitants of a district cannot render legal a depar- 
ture from the mode of procedure prescribed by law. So long as 
all acquiesce in a course which is certainly the most convenient, 
and may be altogether unobjectionable on the score of equity, no 
trouble is to be apprehended; but if any one chooses to contest 
the legality of the proceeding, the trustees will be involved in dif- 



270 CASES DECIDED BY THE 

iiculty. The only course, therefore, which is safe, under all cir- 
cumstances, is the one pointed out by the law. 

The Trustees of school district No. 6 in the town of 
Yates, ex parte. 

Non-residents are taxable for lands used as pastures. 

The facts of this case are stated in the Superintendent's opinion. 

By John A. Dix, Oc/o6er 29, 1835. Mr. C. lives in the 
town of Ridgeway, and owns a farm there, pays taxes, &c, but 
owns a piece of land in the town of Yates, which he occupies 
for pasturing, ploughing, &.c. separate and distinct from his 
farm. He has no house, servant or agent upon it, but whatever 
is done upon it he does himself. The question is ; Has the 
school district in the town of Yates, in which said piece of land 
lies, a legal right to tax it for building a school-house? 

Answer. There is no doubt about it. The owner may be 
taxed for so much of it as is cleared and cultivated ; and the Su- 
perintendent has always held that a piece of cleared ground used 
for pasturing, was of that class of lands for which a non-resi- 
dent owner may be taxed. 

The Commissioners of Common Schools of the town 
of Alexander, ex parte. 

When a school disti-ict is dissolved, the value of the school-house and other pro- 
perty ought to be distributed among the inhabitants according to their taxable 
property. 

In this case a school district was annulled and set off to other 
districts, all of which were furnished with school-houses. The 
question submitted was, in what manner the school-house and 
appendages belonging to the district so annulled should be dis- 
posed of? 

By .Toiijsr A. Dix, October 29, 1835. No provision has been 
made by law for the case about to occur in your school district. 
But, where a district is dissolved by the commissioners of com- 
mon schools and the inhabitants are set off to other districts, the 
proceeds of the property belonging to the former ought to be dis- 
tributed among the inhabitants according to their taxable proper- 
ty. It is the taxable property of the district that has provided 
the school-house, &:c. and the proceeds of the sale should revert 
to the source from which it was derived. All the taxable inhabi- 
tants would of course participate in the distribution in ratio of 
their respective possessions. It may seem unjust, at first glance 
that those who have moved into the district since the school- 
house was built, should receive any portion of its value ; but it 



SUPERINTENDENT OF COMMON SCHOOLS. 271 

is possible that they may have paid an increased price for pro- 
perty in the district oil account of the school privileges, and the 
rule will probably prove as equitable as any other tliat can be 
adopted. To all taxes levied for common school purposes in the 
districts, to which they are now set off, they will contribute in 
the ratio of their property, and for this reason also the rule of 
distribution seems reasonable. It is manifestly impracticable to 
neek out all who have contributed to the erection of the house, 
whether they remain in or have removed from the district, and 
restore to each his just quota of the value of the property. 

(anonymous.) 

If an annual meeting is regularly called and attended by only four persons who, 
without organizing, agiee to meet again in a week, the second meeting is 
not valid. 

If an annual meeting is regularly called and attended by four persons, who or- 
ganize, and without transacting any other biisiness adjourn lor a week, the pro- 
ceedings are valid and the annual election may be held at the adjourned' 
meeting. 

Schools must be kept in the district school-house, excepting in extraordinary 
cases. 

By John A. Dix. October 30, 1835. A statement of the 
cases submitted to me is herewith annexed with my opinion. 

1. At an annual meeting: legally notified by the district clerk, 
four persons only attended. The clerk was absent, and the 
meeting was not regularly organized, no moderator being ap- 
]K)inted. The four who were present agreed to hold the annual 
meeting in one week from that time. The taxable inhabitants, 
or a major part of them, met at the time agreed on, organized 
the meeting and elected their district officers, with the exception 
of a collector. The question submitted is. whether the last meet- 
ing was legal? 

Ansicer. It was not. Nor was the annual meeting legal. The 
latter was not organized, nor were there any proceedings whatever 
which v%'ere authorized or which could be made a matter of re- 
cord. The agreement of a few individuals, assembled without 
any form of organization, (o hold a meeting at a subsequent 
time, could not give validity to it as an adjourned meeting ; and 
as the latter was held in pursuance of that agreement, the pro- 
ceedings were altogether void and without effect. 

2. At an annual txieeting legally notified by the district clerk, 
four persons only attended. The clerk was absent. The meet- 
ing was organized by appointing a moderator and a clerk pro tem- 
pore. No further business was done, but the meeting was adjourn- 
ed for one week from that time v.'ithout having the proceedings 
of the meeting recorded. A major part of the inhabitants met in 
pursuance of the adjournment and elected their district officers, 



272 CASES DECIDED BY THE 

with the exception of a collector. The question submitted is, 
whether this meeting wasjegal? 

Answer. Yes. The annual meeting being regularly called 
and organized, the persons present had a right to adjourn to 
another day. The inhabitants of a school district may exer- 
cise this right whenever they are lawfully assembled at any dis- 
trict meeting. The adjournment being legal, the second meet- 
ing held in pursuance of it, was also legal, so far as respects the 
right to hold it. District officers must be elected at the annual 
meeting, but the second meeting must be deemed a continuation 
of the annual meeting, an adjournment having been voted in 
consequence of the small number of persons present, in order 
to procure a fair expression of the wishes of the district. The 
omission on the part of the proper officer to put the proceedings 
of the first meeting on record does not affect the validity of those 
proceedings. It is a delinqueney for which the responsible per- 
sons are highly censurable ; but their negligence cannot be al- 
lowed to prejudice the interests of the district. 

3. Can a public school be supported in such a manner as to 
obtain the public money in any place, excepting the school- 
house in said district, when a majority of the district vote for it? 

Answer. This must depend on circumstances. A school can- 
not be kept in any other place than the district school-house, ex- 
cepting for the most urgent reasons. Cases may occur in which 
it is not only proper, but necessary, to select another house tem- 
porarily ; but they are certainly rare, and when they do occur, 
the place where the school is to be kept must be designated by 
vote of the inhabitants. 

(anonymous.) 

If a school district is altered, the site of the school-house may be changed, by a 
majority of votes, and without the consent of the commissioners of common 
schools. 

By John A. Dix, November 3, 1835. If, after a school- 
house has been built or purchased, the district is altered, the site 
may be changed and the school-house removed by a majority of 
the voters present, and without the consent of the commission- 
ers of common schools. 

By reference to sub. 4, sec. 61, page 478, 1 R. S. you will ob- 
serve that the power " to designate a site for the district school- 
house" is unlimited, excepting by the first part of the section, 
which is applicable to all its subdivisions : and by subdivision 6, 
of the same section, the power "to repeal, alter and modify" 
proceedings is given. 

The provisions of the act of Feb. 17, 1831, are restrictions on 
the exercise of these powers : but these provisions are all appliea- 



SUPERINTENDENT OF COMMON SCHOOLS. 273 

ble to unaltered districts ; and the 66th section of the revised sta- 
tute relating to common schools having been repealed, there is 
no restriction as to fixing or changing the site of the district school- 
house, in districts which have been altered. In such cases the 
consent of the commissioners is not necessary, nor is a vote of 
two-thirds required. In other words, the powers given by sec. 
61, before referred to, may be exercised. 

A. B. a teacher in school district No. in the 

town of New-Hartford, ex parte. 

Trustees must settle all accounts arising out of contracts executed before the 
expiration of their term of ofBce. 
Trustees in office must sign a warrant, in order to give it validity. 

In this case, a female teacher, employed in 1834, received part 
of her wages, and the balance remained unpaid, when the trus- 
tees, who contracted with her^ went o«t of office. Her term of 
instruction ended before their tenn of office expired. There was 
no dispute as to the amount due her. The only questions were, 
who should make out the rate bills and sign the warrant. 

By John A. Dix, November 7, 1835. The Superinten- 
dent has always required trustees of school districts to attend to 
the settlement of all accounts arising out of contracts executed 
before the expiration of their term of office. Thus, if the term, 
for which the female teacher referred to in your letter was em- 
ployed, expired before the trustees who contracted with her went 
out of office, they should have made out the rate bill for the col- 
lection of her wages, although the trustees in office at the time 
the rate bill was made out must have signed the warrant in or- 
der to give it validity. There has been gross negligence in post- 
poning the collection of her dues to the present time : but I think 
the usual course proper in this ease, notwithstanding the delay. 
The trustees in office when her term expired should make out a 
rate bill, including all the persons who sent children to school 
during that t^rm and who have not paid their proportion of the 
amount due her for tuition. To this bill the trustees now in of- 
fice must annex their warrant. 

The Trustees of school district No. 1 in the town of 
Veteran, ex parte. 

Persons removing from a district after a tax Jist is made out are liable for their 
portion of the tax. 

In this case a tax list was made out, but before the tax could 
be collected, two of the persons included in the list removed 
from the district, and their places were supplied by two other 
persons who moved into the houses vacateid by them. The 

18 



274 CASES DECIDED BY THE 

Superintendent was desired to state whether the persons so re- 
moving were liable for the amount due, and if so, how the collec- 
tion was to be enforced against them. 

By John A. Drx, November 13, 1835. The persons, who 
have removed from your district since the tax list for build- 
ing a school-house was made out, are liable for their portion 
of the tax. They were taxable inhabitants residing in the dis- 
trict at the time the tax list was made out, and if they refuse to 
pay, and the collector cannot find goods and chattels in their pos- 
session, the trustees may prosecute them for the amount due. 
The suits must be brought by the trustees in their name of office. 
See sec. 89 of the statute relating to common schools. There is 
no other mode of enforcing the collection of the tax against the 
persons referred to. The individuals, who have moved into the 
houses vacated by them, are not liable for the amount due from 
them. A warrant issued by the trustees of a school district is a 
lien only upon the good^.and chattels Ijelonging to or in posses- 
sion of the persons included in the tax list, and does not bind 
those who succeed such persons in the occupation of their 
houses or farms. 

The Inspectors of Common Schools of the town of 
Madison, ex parte. 

Three inspectors must sign a certificate of qualification. 

A separate examination of a teacher by three inspectors apart from each is not a 
compliance with the law. 

This was an application for the opinion of the Superintendent 
in a case in which three inspectors had examined a teacher se- 
parate and apart from each other, and had given him a certifi- 
cate of qualification. He was also desired to state whether two 
inspectors had authority to examine a teacher and grant a certi- 
ficate. 

By John A. Drx, November 16, 1835. The signatmes 
of three of the inspectors of common schools are indispensable 
to give validity to a certificate of qualification for a teacher. 
Before such a certificate can be given, three inspectors must ex- 
amine him. For this purpose they must meet together. AH 
these formalities have been held to he, essential to the validity of 
a certificate. I do not recollect that a case similar to the one re- 
ferred to in your letter has been presented to me; but it is quite 
clear that an examination of a teacher by three inspectors apart 
from each other, or at a meeting attended by two inspectors only, 
is not a sufficient compliance with the requirements of the law. 



superintendent of common schools. 275 

(anonymous.) 

Errors in assessing taxes may be corrected after one month. 

By John A. Dix, November 17, 1835. Errors in the as- 
sessment of taxes for school district piuposes may be corrected 
after the expiration of the montii within which the tax lists are 
required to be made out. 

The Commissioners of Common Schools of the town 
of Candor, ex parte. 

An alteration in a school district, made without evidence of the consent of the 
trustees, or of notice to them, will be held not valid, if all concerned have for 
five years acted as though it had not been made. 

In this case an alteration in a school district was made by the 
commissioners of common schools of the (own of Candor and re- 
corded, but without ajiy evidence of the consent of the trustees 
or of any notice to them ; and for five years no notice had been 
taken of the alteration by the trust-ees or any of the |>arties con- 
cerned. The question proposed was, whether it was lo be re- 
garded as a valid alteration. 

By John A. Dix, Noveinher 19, 1835. Aa alteration in a 
school district regularly made and recorded, but without any 
evidence of the consent of the trustees or of any notice to them, 
will not, after the lapse of five years, be deemed valid, if during 
that time all concerned have acted as thotigh no alteration had 
been made. The fact that the proceeding has been wholly dis- 
regarded, is sufficient to raise a presmnption tliat in consequence 
of the informality referred to ho attempt -was made to carry it 
into execution. 

The Commissioners of Common Schools of the town 
of Orleans, ex parte. 

Commissioners of common schools are entitled to such compensation for tlioir 
services as may be voted by the inhabitants of the town. (But see note.) 

Commissioners of common schools cannot charge a percentage on the school mo- 
neys received and paid over by them, and deduct such per centa^e from those 
moneys. 

The following is a commtmication addressed by the Superin- 
tendent to the commissioners of coi^imou schools of the town 
of Orleans, on discovering b)^ their annual report that they had 
deducted from the public moneys received and paid over by them 
a commission for their services. 

By John A. Dix, November 21, 1835. I perceive, by an 
examination of your annual report of the common schools for 
the present year, that you have charged a commission of $2.42 



276 CASES DECIDED BY THE 

on the moneys received by you for distribution to the districts in 
the town of Orleans in April last. Such a charge is altogether 
illegal and without precedent, excepting in the ease of your pre- 
decessors in 1834. On referring to last year's report signed by 
Messrs. D. A. Aldrich, Charles Sexton and H. W. Bushnell, I 
find a charge of $3, as a commission for receiving and distri- 
buting the school moneys. This fact escaped my notice last 
year ; but in the examination of Jiiore than 800 reports it is, per- 
haps, not singular that it was overlooked. 

I, of course, do not doubt that this commission was charged un- 
der the misapprehension: on your part that you were entitled to it, 
I therefore trust that it will be promptly refunded as soon as you 
are apprized that it was illegally taken. The only mode of rec- 
tifying the error now is to add the amount charged in the two 
years 1834 and 1835, ($5.42,) to the moneys to be apportioned 
and distributed in April aext to the school districts in your town. 
I shall expect to find this item in the next annual report of the 
town of Orleans. You are entitled to such eompensation for 
your seiTices as the inhabitants of the town think proper to al- 
low;* but you cannot pay yourselves out of the school moneys^ 
and there is no authority to charge a commission for receiving 
and paying out those moneys. 

The Trustees of school district No. 3 in tlie town. of 
Le Ray, ex parte. 

If a district is divided imtnediately after the school moneys are distriboted, and' 
the persons set off conrimie t& &end to school in the district, those moneys 
should be applied for their benefit in common with othere. 

This was an application to the Superintendent for his direc- 
tion under circumstances explained in his order. In addition to 
the facts contained therein, it was also stated by the trustees of dis- 
trict No. 3 that the inhabitants of the new district, (No. 7,) who 
had continued to send their children to school in the former, re- 
fused to pay their tuition bills unless the public money was ap- 
plied in reduction of their dues ; and the question was suhmitted, 
whether the collector could distrain their jj«-operty, (they being in- 
habitants of another district,) in case they were iiiduded in the 
rate bill? 

By John A. Dix, November 23, 1835. A statement has 
been presented to the Superintendent of Common Schools by the 
trustees of school district No. 3 in the town of Le Ray, setting 
forth the following facts, and requesting his decison thereon. 

*By an act passed 22d April, 1837, commissioners of common schools are al- 
lowed one dollar per day for every day actually and necessarily devoted to their 
duties. 



SUPERINTENDENT OF COMMON SCHOOLS. 277 

Oa the 14th of April, 1835, a new district was fwmed by the 
commissioners of common schools under the name of district No. 
7, by setting olV a part of districts No. 3 and No. 8. The pro- 
perty of district No. 3 was appraised and apportioned, and the 
amount due the new district was paid. No division was made 
of the public money, which had just been paid by the commis- 
sioners to district No. 3. The school-house in the new district 
is not yet completed, and the inhabitants of No. 7 formerly be- 
longing to No. 3 have continued to send their children to school 
in the latter district. A rate bill to pay the wages of the teachei', 
who has been employed during the summer, has been made out, 
and the whole of the public money appropriated to the summer 
term has been applied for the benefit of the inhabitants of No. 3. 

The Superintendent of Common Schools has repeatedly de- 
cided that the public money in the hands of the trustees of a 
school district, at the time such district is divided to form a new 
one, must be equitably shared by the respective parts thus sepa- 
rated from each other. It should have been treated as a com- 
mon fund, in the case under consideration, and divided accord- 
ing to the number of children between 5 and 16 years of age. 
There is no law which makes such a proceeding a part of the 
duty of the commissioners of common schools in the division of 
a school district, and it is, therefore, not to be regarded as an 
error on their part. Public money is not to be considered as 
" property" within the meaning of section 67 of the statute re- 
lating to common schools. If it were so, the amount due the 
new district would, under section 69, be levied upon the taxable 
property of the district possessing it, which would te manifestly 
unjust. But it has always been treated by the Superintendent 
as a fund held in trust for the benefit of all the inhabitants of 
the district, until it is legally expended, and, therefore, proper to 
be equitably divided, (although there is no express legal provi- 
sion to that effect,) whenever a part of the inhabitants are set off 
10 form a new district.* 

The principle, however, does not extend to cases where the mo- 
ney has been appropriated by a vote of the inhabitants to a term 
which has expired previous to the division of the district. The 
case under consideration is not of this character. The question 
concerns the disposition of public money applicable, at the time 
of the division, to the term next succeeding it. 

The mode of providing the necessary relief in this case would 
be obvious, if there was not a disposition on the part of the trus- 

*See the cases of the trustees of school district No. 4 in the town of Cobles- 
kill, page 125, and the trustees of school district No. 8 in the same town, nao-e 
137. ' " 



278 CASES DECIDED BY THE 

tees of district No. 3 to do all that justice demands. The Su- 
perintendent would require the amount to which district No. 7 is 
fairly entitled to be deducted out of the next public moneys to be 
apportioned to No. 3, and paid to the trustees of the former dis- 
trict. But the whole question having been submitted to him by 
the trustees of No. 3 he will proceed to direct what justice seems 
to him to require. 

It may not be improper to say^ before giving the necessary di- 
rection, that the right of the collector to execute a warrant with- 
out the bounds of his district in this case is justly called in ques- 
tion by the inhabitants of No. 7* If this position is correct, the 
only remedy will be for the trustees of No. 3 to prtKecute the 
non-residents in their name of office, imless they pay volunta- 
rily the amount due from them respectively. This course will 
be extremely troublesome, and may not, in every case, accom- 
plish the ends of justice. 

On the other hand, it is supposed that the inhabitants of No. 
7, w^ho have sent their children to school in No. 3 during the 
summer term, will pay the amount of their school bills without 
objection, if they are allowed to participate equally with the in- 
habitants of No. 3 in the benefits of the public money, and thus 
indirectly to enjoy what they were fairly entitled to receive. 
Should any refuse to pay, there will be no alternative left to the 
trustees of No. 3 but to prosecute them for the amount of their 
bilk 

It is accordingly ordered, that the trustees of district No. 3 
proceed immediately to make out a new rate bill for the collec- 
tion of the wages of the teacher who taught the summer term. 
The public moneys will first be applied to the object, and the 
residue will be assessed equally upon all who have sent children 
to school, in proportion to the number of days so sent. If any 
of the inhabitants of No. 3 have made payments under the rate 
bill already made out, credit will be given to them for the amount 
of such payments on the new rate bill, and a direction will be 
given to the collector accordingly. 

The Commissioners of Common Schools of the town 
of Sodus, ex parte. 

Treasurers of counties cannot deduct from the school moneys the commission of 
one per cent to which they are entitled. 

The treasurer of the county of Wayne had for several years, 
as appeared by testimony produced before the Superintendent, 

• See the case of the trustees of school district No. in the town of Wills- 
borough, decided March 6, 1837. 



SUPERINTENDENT OF COMMON SCHOOLS. 279 

been in the habit of deducting from the school moneys paid over 
by him to the several towns in his county, the commission al- 
lowed him by law. The opinion of the Superintendent as to 
his right to do so was requested. 

By John A. Dix, November 26, 1835. Treasurers of coun- 
ties have no right to deduct from the amount of the school mo- 
neys apportioned to each town by the Superintendent of Com- 
mon Schools a commission of one per cent. They are unques- 
tionably entitled to such a commission, under sec. 26, page 370, 
1 R. S., on the moneys received and paid by them for the use 
of the common schools, but they have no right to diminish the 
amount of the moneys placed in their hands for distribution, im- 
der a special apportionment by the Superintendent. The commis- 
sion referred to is a charge upon the county, and not upon the 
common school fund. See sub. 1, sec. 3, p. 385, 1 R. S. County 
treasurers are required to hold " the amount apportioned" to each 
town, subject to the order of the commissioners of common 
schools of such town. See sec. 14, page 469, 1 R. S. By the 
order of apportionment, the town of Sodus in Wayne county, is 
entitled to $183.80 per annum. Has the town received that 
amount? Certainly not; and the requirements of the law have 
not been fulfilled. 

In providing for raising on the towns a sum equal to that 
which they severally receive from the common school fund, the 
fees, which the collector is to receive as his compensation, are to 
be added to the sum first mentioned. See sec. 17, page 469, 1 
R. S. This is clearly intended to guard against any din)inu- 
tion of the amount to go into the hands of the commissioners 
of common schools, and thus to make the sum levied on the 
town and paid to them precisely equal to the sum received by 
them from the county treasurer. If the county treasurer retains 
his commission out of the moneys received by him from the com- 
mon school fund, the amount paid by the town will exceed the 
amount paid by the common school fund ; whereas it was in- 
tended that they should be equal. Without a special provision, 
therefore, authorizing the county treasurer to retain his commis- 
sion out of the moneys appropriated to and paid into his hands 
for the support of the common schools in the county, he can- 
not do so consistently with the requirements of the statute before 
cited. The commission charged by the treasurer on moneys re- 
ceived and paid by him, is his compensation for the services which 
he renders as a county oflicer. The amount of the commission 
is a charge upon the county treasury ; and the board of super- 
visors should add it to the amount to be raised for defraying ac- 
counts chargeable against the county. The amount retained 
by the treasurer of Wayne county for several years past out of 



280 CASES DECIDED BY THE 

the school moneys, ought to be refunded to the towns, and I 
have no doubt the board of supervisors would, on a representa- 
tion of the facts, cause to be levied by tax an amount sufficient 
for the purpose. 

The Trustees of school district No. 4 in the town of 
Darien, ex parte. 

District officers duly elected cannot be displaced at an adjourned meeting on a 
reconsideration of the choice before made. 

In this case the annual meeting in school district No. 4 in the 
town of Darien was held at the appointed time and place, offi- 
cers for tlie district were chosen for the ensuing year, and the 
meeting was then adjourned for five days. At the adjourned 
meeting the choice of officers was reconsidered and rescinded, 
and other persons were chosen in their place. The Superinten- 
dent was requested to state whether the proceedings at the ad- 
journed meeting were legal. 

By John A. Dix, November 27, 1835. The district officers 
elected at your annual meeting on the 5th October are lawfully 
in office, if that meeting was legally organized and conducted, 
and they cannot be displaced by a reconsideration of their ap- 
pointment at an adjourned meeting. The inhabitants had a 
right to adjourn to another day, if they could could not complete 
their business. But a legal election once consummated cannot 
be brought up for reconsideration at a subsequent meeting of the 
inhabitants and set aside. 

The Trustees of school district No. — — in the town 
of Arkport, ex parte. 

A tax cannot be voted for globes and school apparatus. 

This was an application to the Superintendent for his opinion 
as to the propriety of raising a tax for purchasing globes and 
school apparatus under the provision of law which authorizes 
the inhabitants of school districts to furnish school-houses with 
necessary appendages. 

By John A. Dix, November 27, 1835. The inhabitants ot 
school districts have no right to lay a tax upon their property for 
purchasing globes and apparatus for the use of their schools. 
These are not among the enumerated objects for which they are 
authorized by law to vote taxes ; nor can globes and school ap- 
paratus be considered, however desirable they may be, as "ne- 
cessary appendages" to a school-house. I regret that you should 
have any difficulty on this score, as the spirit which the inhabi- 
tants of your district have manifested in attempting to elevate 



SUPERINTENDENT OF COMMON SCHOOLS. 281 

the character of their school, reflects great credit upon them. 
They must, however, go a step further, as the statute affords 
them no aid, and carry out by voluntary contribution what they 
have commenced. 

The Trustees of school district No. 5 in the town of 
Catlin, ex parte. 

From the 1st of September to the meeting of Ihe board of supervisors the assess- 
ment roll of the town in the hands of the supervisor must be consulted in as- 
sessing taxes in school districts. 

if a warrant is issued to collect a tax which has not been assessed according to 
the last assessment roll of the town, and property is taken and sold, the trus- 
tees who issued the warrant are answerable as trespassers; but the warrant is 
a complete protection to the collector who executes it. 

On the first Tuesday of October, 1835, a tax was voted in 
school district No. 5 in the town of Catlin to purchase a district 
library, and the tax hst was made out by the trustees from the 
town assessment roll foi- the year 1834. The question submit- 
ted was, whethei' this could be deemed the last assessment roll of 
the town? 

By John A. Dix, December 1, 1835. Tax lists must be 
made out according to the last assesment roll of the town. The 
Superintendent of Common Schools has decided that the assess- 
ment roll of the town, when sigtied and certified according to the 
provisions of the 26th section of title 2d, chap. 13, 1 R. S. page 
394, is to be considered as " the last assessment roll of the town." 
This roll is, by the provisions of section 27, same page, to be de- 
livered to the supervisor of the town, on or before the first day of 
September, to be delivered by him to the board of supervisors at 
their next meeting. From the first of September, therefore, to 
the day on which the supervisors meet, the roll can be consulted 
in the hands of the supervisor of the town, by the trustees of 
school districts. The board of supervisors meets in your county 
the Tuesday next after the general election, which is in No- 
vember. The meeting at which the tax referred to in your 
letter was voted, was held on the first Tuesday of October. 
The assessment roll in the hands of the supervisor should have 
been consulted. 

The supreme court in the case of Alexander and others vs. 
Hoyt, 7 Wend. 89, held that trustees of school districts were an- 
swerable as trespassers where property had been taken under a 
warrant issued for the collectioH of a tax, which was not assessed 
according to the last assessment roll of the town. It is extreme- 
ly important, therefore, that they should, in the assessment of tax- 
es, confine themselves strictly within the directions of the statute. 



282 CASES DECIDED BY THE 

It is proper to add that the court held in the same case that 
the warrant was a complete protection to the collector in a suit 
brought against him for taking and selling the property, on the 
principle that a ministerial officer executing process issued by a 
tribunal having jurisdiction of the subject matter is not a tres- 
passer though that tribunal eir in the exercise oS its duties * 

(anonymous.) 

Contracts by trustees with a teacher for his wages aie binding on fheir^ucees- 

sors in office. 

By John A. Dix, December 16, 1835. Contracts between 
the trustees of a school district and a teacher for his wages are 
binding on the successors of such trustees. Thus a contract 
with a tecicher to instruct the district school for six months is 
not vacated if the trustees who made it go out of office before the 
expiration of that period, and their successors are bound to see it 
fulfiUed.t 

There may be cases of gross misconduct on the part of a 
teacher which would justify the latter in dismissing him; but 
this depends on a different principle. 

The Trustees of school distFict No. 9 in the town of 
Otselic, ex parte. 

Taxes should be promptly collected. 

If a tax is voted in express terms, and a direction subsequently given as to the 
time and manner of collecting it,, the direction is voidv 

In this case a tax of $120 was voted to build a school-house, 
in October,. 1835. After the tax was voted a resolution was of- 

* In the case of Suydam and Wyckoff vs. Keys, 13 Johns. 444, it was held by 
the supreme court, that the collector of a school district was liable as a trespasser 
in taking property under a warrant issued by the trustees for the collection of a tax, 
where certain non-residents not liable to taxation had been included in the tax 
list. The principle on which this decision was made was, that the authority of 
the trustees was special and limited, and that the subordinate officer was bound to 
see that he acted within the scope of the legal powers of those who commanded 
him. 

This doctrine has been overturned by the decision of the court in the case of 
Sacavool vs. Boughton, 5 Wendell 170, in which it is settled that " if the sub- 
ject matter of a suit is within the jurisdiction of a court, but there is a want of 
jurisdiction as to the person or place, the officer who executes process issued in 
such suit is no trespasser, unless the want of jurisdiction appears by such pro- 
cess." 

Thus if the trustees of a school district should include in a tax list persons not 
liable to be included in it, and the collector should take and sell the property of 
such persons by virtue of the warrant directed to him for the collection of the 
tax, the warrant would be a protection to him, although the trustees would be 
answerable in trespass to the injured parties. 

t This principle is settled by the supreme court, in the case of Silver vs. Cum- 
mings and others. 7 Wendell, page 181. 



SUPERINTENDENT OF COMMON SCHOOLS. 283 

fered and carried that the tax should not be collected until the 
ensuing 1st of April, and that lumber delivered before that time 
on the site of the school-house might be received in part payment 
of the tax. The legality of this direction to the trustees being 
doubted, the opinion of the Superintendent was asked. 

By John A. Dix, December 31, 1835. Taxes for school 
district purposes should always be promptly collected. They 
bind only goods and chattels in possession of the taxable inha- 
bitants residing in the district at the time of making out the tax 
list, which must be completed within one month after the tax is 
voted. If the collection of the tax is delayed six months as pro- 
posed in your district, and any of your taxaWe inhabitants should 
move out of it, the property on which the taxes of such persons 
were estimated could not be reached, and the district might be 
without remedy against them or the persons coming into posses- 
sion of that property. The Superintendent has, therefore, al- 
ways required taxes to be collected immediately when questions 
of this sort have been brought before him. If a tax is voted un- 
conditionally and in express terms, and the inhabitants proceed 
afterwards to give their direction to the trustees as to the time 
or manner of collecting it, the latter are not bound by such direc- 
tion. The law points out the mode in which the tax shall be col- 
lected, and the trustees must be governed by its requirements. 
A vote to pay a tax in any thing but money is void and of no 
effect. If a condition as to the mode of collecting it is annexed to 
the vote or resolution by which it is authorized, so as to constitute 
a part of such vote or resolution, I inchne to think the whole pro- 
ceeding void. 

(anonymous.) 

Trustees should call a special meeting when requested by a respectable num- 
ber of the inhabitants. 

By John A. Dix, January 1, 1836. Trustees should al- 
ways call a special meeting of the inhabitants of a school dis- 
trict when requested by a respectable number of the inhabitants. 
The latter have a right to repeal, alter or modify their proceed- 
ings at district meetings ; but how shall they exercise this power 
if^the trustees refuse to call them together for the purpose? The 
Superintendent will always, on showing sufficient cause, order a 
meeting when the trustees refuse to do so. In case of an appli- 
cation to him for the purpose, the trustees must have notice of it.* 

• See the case of Caleb N. Potter and others, page 147. 



284 CASES DECIDED BY THE 

The Trustees of school district No. in the town 

of Concord, ex parte. 

If trustees neglect to raise and pay over the amoint apportioned to a new district, 
their successors in office must make out a tax list and collect the amount so 
apportioned. 

School district No. in the town of Concord was divided 

and a new district formed. The school-house in said district 
was appraised by the commissioners, and the amount to be paid 
to the new district as its proportion of the value of the school- 
house was ascertained. The trustees neglected to collect the 
amount due to the new district during their continuance in of- 
fice; and the question proposed to the Superintendent was, 
whether it was the duty of their successors in office to make out 
a tax list for the purpose, and pay over the amount so due? 

By John A. D[x, Ja/iwary 6, 1836, Where the trustees in 
office, at the time the school-house and property of a district are 
appraised by the commissioners of common schools in forming a 
new district, neglect to make out a tax list and collect the amount 
apportioned to such new district, their successors in office are 
bound to do it, precisely as though the apportionment had been 
7nade during the term of service of such successors. 

A. B. a taxable inhabitant of school district No. 

in the town of Vienna, ex parte. 

The provision exempting from taxation for building a school-house persons who 
have within four years paid a tax for the purpose in another district, from 
which they have been setoff without their consent, does not extend to taxes 
voted to furnish a school-house with necessary appendages. 

In this case A. B. was set off without his consent from a 
school district, in which he had paid a tax for building a school- 
house within four years. A tax was immediately afterwards 
laid in the district, to which he was annexed, for purchasing a 
stove and some other necessary appendages to the school- house. 
The question presented to the Superintendent was, whether A. 

B. was exempt from a tax voted for such a purpose under the 
provision exempting persons set off under similar circumstances 
from contributing to the erection of a school-house? 

By John A. Dix, January 7, 1836. I am of opinion that 
the provision of sec. 81, page 483, 1 R, S. which exempts from 
the payment of any tax for building a school-house, every taxa- 
ble inhabitant who shall have paid such a tax within four years, 
in a district from which he has been set off without his consent, 
does not extend to appendages to a school-house. I am disposed 
to construe the provision liberally ; but I do not think the exemp- 
tion can be extended so far as to include the objects of taxation 



SUPERINTENDENT OF COMMON SCHOOLa. 285 

referred to, when the language of the statute in all cases relat- 
ing to school-houses and their appendages is taken into consi- 
deration. In every such case appendages appear to be dis- 
tinctly mentioned when they are intended to be referred to, and 
I am not aware of any instance, in which they can be deem- 
ed to be included in a provision in which the school-house on- 
ly is named. This position is confirmed by the language of 
section 83, (the second section following the one before referred 
to.) in which a tenant may charge the owner of the land occu- 
pied by him with the amount of a tax paid by him, under cer- 
tain circumstances, for building, repairing or purchasing a school 
house, or for furnishing it with necessary fuel and appendages. 
It appears evident to me, therefore, that the law exempts you 
from nothing more than a tax for the school-house, and that you 
may be required to contribute for every other authorized object 
of taxation. 

(anonymous.) 

The Soperintendent will not give opinions to be used in court 

By John A. Dix, January 8, 1836. The Superintendent 
is requested to answer certain questions in such a manner that 
his opinion may be vised in court. He cannot comply with this 
request. If the questions in dispute had been brought before 
him for adjudication, he would dispose of them at once; but as 
they have been carried into the courts, he has no control over 
them, nor would it be decorous on his part to give an opinion 
in a special case for the purpose of influencing the judicial de- 
cision about to be pronounced upon it. 

The Trustees of school district No. 17 in the town of 
Le Ray, ex parte. 

If a taxable inhabitant sells his farm and remains in the district, he is liable to be 
taxed on the amount of the purchase money paid or secured tw be paid as 
personal property, and the purchaser is taxable for the farm according to its 
assessed value on the last assessment roll of the town. 

On the 30th of November 1835, Mr. Walker moved into 
school district No. 17 in the town of Le Ray, and purchased 
of Mr. Lawrence, for the sum of $3,600, a farm which on the 
last assessment roll of the town was valued at $750. Mr. Wal- 
ker paid $1,500, at the time of the purchase, and gave securities 
for the balance, $2,100. Mr. Lawrence continued to reside in 
the district. On the 19th of December, 1836, a tax was voted to 
build a school-house. In making out the tax-list, the trustees 
of the district assessed Walker for $750, the value of the farm 
as ascertained by the last assessment roll of the town, and Law- 



286 CASES DECIDED BY THE 

rence for ^3,600 the amount of the purchase money paid and 
secured to be paid to him for the farm. The Superintendent 
was requested to state whether the assessment was properly made. 

By John A. Dix, January 11, 1836. The assessment of 
the property of Messrs. Lawrence and Walker is according to 
the requirements of the law, and I see no reason, either in law 
or equity, for reducing the amount as to either. The only in- 
justice in the case is that Mr. Walker should be taxed to the 
amount of ,^750 only, for property which he has just purchased 
for ^3,600. But this cannot be avoided, the value being fixed 
by the last assessment roll of the town. 

So much of the purchase money as has been paid, and the 
amount of the securities in Mr. Lawrence's possession for the 
payment of the balance, are personal property, and are liable to 
be taxed as such. The district has gained by the sale of his 
farm the amount of the purchase money in taxable property : 
but if Mr. Lawrence had removed from the district after selling 
out, there would have been nothing gained, and, indeed there 
would have been a loss, if Mr. Walker's personal property, after 
deducting his debts, (and the balance of ,$2,100 due for the farm 
is to be considered as a debt,) were less than Mr. Lawrence's per- 
sonal property deducting his debts. The only way in which the 
district could be a gainer, would be by Mr. Lawrence's remaining 
in it, as he has done. 

(anonymous.) 

A warrant runs from its delivery and not from its dale. 

A collector cannot sell property afler the expiration of his warrant. 

By John A. Dix, January 11, 1836. The time for execut- 
ing a warrant runs from the time of its delivery to the collector, 
and not from its date. See sec. 88, page 484, 1 R. S. 

If a collector makes a levy before the expiration of the time 
limited for the return of the warrant, he cannot sell after the 
expiration of that time, unless the warrant is renewed. Thus 
if he takes property on the twenty-eighth day after the delivery 
of the warrant to him, and immediatel}'^ gives six days' notice 
of sale, he cannot sell at the end of the six days, unless he pro- 
cures a renewal of the warrant, as he is commanded to make his 
return within thirty days. 

The Trustees of school district No. in the 

town of Stillwater, ex parte. 

A tax to purchase a school district library cannot be voted at a meeting of which 
no notice is required by law to be given. 

At the annual meeting in school district No. in the town 



. SUPERINTENDENT OF COMMON SCHOOLS. 287 

of Stillwater, the propriety of raising a sum of money by tax for 
the purpose of purchasing a hbiary for the district was informal- 
ly considered, and after some discussion the meeting was ad- 
journed fw two weeks. In the mean time, the clerk of the dis- 
trict put up notices, stating that a meeting would be held at the 
appointed time and place for the pui-pose of voting a tax to pur- 
chase a district library. The meeting was held, and a tax of 
$20 was voted for the purpose. The question presented to the 
Superintendent was, whether a tax couM be legally voted at 
such a meeting? 

By John A. Dix, January 13, 1836. The proceedings of 
the meeting at which a tax was voted to purchase a school dis- 
trict library w^ere illegal, so far as that vote is concerned, for want 
of a proper notice. 

The provision in the act relative to the purchase of school 
district libraries requiring a notice of intention to lay a tax to be 
given, was not in the bill as originally reported, but was insert- 
ed by way of amendment, and the effect of it appears to me 
to be, that no tax for that purpose can L)e laid excepting at a 
meeting, of which a notice is required by law to be given. 
Thus, such a lax cannot be voted at an adjourned meeting, 
unless the adjournment is vfor more than one month, because 
no notice is recjuired to be given for a meeting adjourned for 
a shorter time. The notice given in this case not being in 
pursuanc-c of any legal requirement, cannot be considered as 
having any valid effect. Suchatax maybe voted at an annu- 
al meeting, if the intention to propose it be inserted in the notice, 
or it may be voted at an adjourned meeting for more than one 
month, provided such notice of intention is given. It may of 
course be done at a special meeting, the notice in this case being 
by personal service. The meeting at which the tax was voted 
in your district, is precisely the meeting, at which such a tax 
cannot be voted at all. 

The Inspectors of Common Schools of the town of 
Coxsackie, ex parte. 

Commissioners and inspectors of common schools are entitled to such compen- 
sation as may be voted by the electors of the town at their annual town meet- 
ing. (But see note.) 

This was an apphcation to the Superintendent for his opinion 
as to the authority of the board of supervisors of a county to 
make an allowance to commissioners and inspectors of common 
schools for their services. 

By John A Dix, January 1.5, 1836. The electors of each 
town have power at their annual meeting, to establish the com- 



288 CASES DECIDED BY THE 

pensation of commissioners and inspectors of common schools. 
See laws of 1830, chap. 320, sec. 1. Has your town passed a 
vote on this subject? If so, the amount fixed by it, must govern 
the board of supervisors in auditing your account. If no such 
vote has been passed, it should be done at the next annual meet- 
ing of the town : for I doubt whether the supervisors can allow 
any thing as a compensation to commissioners and inspectors of 
common schools, unless the rate is established as provided by law. 
With respect to the collector of the town, it is different. He 
cannot have more than five, nor less than three per cent. But 
in reference to the officers before mentioned, the law has fixed 
no minimum rate of compensation. It is, therefore, left wholly 
to the discretion of the electors of the towns; and if they vote 
nothing, I do not see how those officers can be allowed any 
thing.* 

(anonymous.) 

Trustees cannot transfer to teachers the authority of prosecuting individuals for 
tuition bills. But trustees must collect their dues by a rate bill, notwithstand- 
: ing an agreement on the part of the teacher to collect them himself. 

By John A. Dix, January 20, 1836. Trustees of school 
districts cannot transfer to teachers the right of prosecuting indi- 
viduals for their tuition bills. The trustees are responsible for 
the payment of their wages, and the teachers should look to 
them alone. If the teacher agrees to collect his own dues, it is 
right that he should do so to the extent of his ability ; but I 
have always held that, in case of a refusal on the part of the 
individuals indebted to him to pay their dues, the trustees should 
issue a rate bill, and direct the amount so due to be collected, 
notwithstanding any agreement with the teacher to the contra- 
ry. The justice of such a decision is manifest. The teacher 
contracts with the trustees to teach the district school, and he is 
entitled to the aid of the authority which the law has deposited 
with them, for the purpose of enforcing the payment of his dues 
from the inhabitants of the district. They will not be allowed 
to make a contract with a view to transfer this responsibility to 
the teacher, and deprive the latter of the legal remedies which 
the law has provided for him. If those who are indebted to 
the teacher do not pay him voluntarily, the sums due him must 
be collected in the mode prescribed by law. 

* By the 5th section of the act of 2?d April, 1837, commissioners of common 
schoels are allowed " one dollar per day for every day actually and necessarily 
devoted by them in their official capacity to the service of the town for which 
Ihey may be chosen, the same to be paid in like manner as other town officers 
are paid." 



SUPERINTENDENT OF COMMON SCHOOLS. 289 

Ttie Trustees of school district No. 3 in the town of 
Walkill, ex parte. 

Annual meetings need not be precisely one year apart to a day. 

This was an application to the Superintendent for his opinioa 
as to the power of the inhabitants of school districts, to fix the 
time for their next annual meeting- on a day more or less than 
a year from the day on which the last was held. 

By John A. Dix, January 23, 1836. I have roceived your 
letter inquiring whether an annual meeting can be fixed at a 
shorter period than one year from the time at which the previ- 
ous annual meeting was held? I do not think it indispensable 
that annual meetings should be exactly a year apart to a day. 
The time may be a few days or vi'eeks more or less than a year 
if the inhabitants think it necessary. For instance, an annual 
meeting held on the first Tuesday of October may be adjourned 
to the second Tuesday of October of the next year. The proprie- 
ty of the act in every case must depend upon the circumstances 
attending it. No general rule, as to the extent of the variation 
from a year, can be laid down as applicable to all cases. 

The Trustees of school district No. 9 in the town of 
Paris, ex parte. 

The inhabitants of school districts cannot vote a tax to p;ovide fuel for singiitg 

schools. 

In school district No. 9 in the town of Paris, a singing school 
was held in the school-house two evenings in the week, and it 
had been customary in warming the house on those evenings to 
use the fuel provided for the school. The propriety of using the 
fuel for this purpose was discussed at a meeting of the inhabi- 
tants, and a tax was voted by a large majority to furnish as 
much wood as was required for the purposes of the district school 
and the singing school. To this proceeding objections were 
made by a few of the inhabitants, and the opinion of the Su- 
perintendent was solicited as to its legality. 

By John A. Dix, January 30, 1836. There is no authority 
to use fuel provided by tax on tiie inhabitants of school districts, 
for any other purpose than that of the district school. If every 
inhabitant in a district were to vote in favor of raising a tax to 
buy wood for singing schools, it would be illegal. The law has 
.specified the objects for which the inhabitants of school districts 
may vote taxes on their property, and they cannot exceed the 
Limits of the authority thus conferred on them. 

19 



290 CASES DECIDED BY THE 

The Trustees of school district No. in the town 

of Fallsburgh, ex parte, 

A tax cannot be laid to erect a building to be occupied jointly as a school-hoosfc 
and a meeting-house. 

In this case a tax of $400 was voted to aid in the construc- 
tion of a house to be occupied during week days for the purpo- 
ses of the district school, and for Jiolding religious meetings on 
Sunday. The balance of the sum required to construct it was 
to be raised by subscription. Doubts having arisen as to the le- 
gality of this proceedings the opinion of the Superintendent was 
requested. 

By John A. Dix, March 9, 1836. The resolution of the 
inhabitants of your school district to unite with certain persons 
to build a house for ttie joint purpose of keeping a school and 
holding religious meetiiigs, and to lay a tax on the district for 
the purpose^ is illegal, and cannot be carried into execution. 
The Superintendent of Common Schools has long since decided 
that there caa be no partnership in school-houses, which will 
prevent their being controlled entirely for common school pur- 
poses. 

The Commissioners of Common Schools of the town 
of Greene, ex parte. 

School district libraries are intended foB flie Bse of all the inhabitaats of the dis- 
trict. 

The right of taking bodes from the library cannot be restricted .to scholars at^- 
tending the district schoel. 

The inhabitants may direct the librarian not to deliver a book to a person who has 
not returned one previously taken out by him, or until he has paid for any 
injury it may have sustained. 

The following questions were proposed i(x the decisioi> of the' 
Superintendent by the commfesioUiers of common schools of the 
town of Greene: 

1. Are school district libraries intended for the common schools 
primarily, or for the inhabitants of the districts ? 

2. Can the inhabitants of a district, at a legal meeting, re- 
strict the use of the books to the scholai-s attending the district 
school ? 

3. If a book be lost,, or destroyed, or so dairtaged as to render 
it unfit for use, can the value of the book be collected from the 
person in whose possession it was when it was lost, destroyed, or 
damaged ? 

By John A. Dix, March 9, 1836. School district libraries 
are intended for the inhabitants of school districts ; as well for 
those who have completed their common school education^ as 



SUPERINTENDENT OF COMMON SCHOOLS- 291 

for those who have not. The primary object of their institution 
was to disseminate works suited to the intellectual improvement 
of the great body of the people, rather than to throw into school 
districts for the use of young peisons works of a merely juvenile 
character. 

The books being procured by a tax on the property of the 
district, no unnecessary restriction should be imposed on their 
circulation among the inhabitants. The regulations to be made 
by the inhabitants should relate principally to their custody and 
preservation. 

I doubt, therefore, the right of the inhabitants to restrict the 
choice of books, to be taken from the library for perusal, to scho- 
lars attending the district school. They may have the privilege 
of drawing them, if the inhabitants adopt such a m\e ; but I 
think any such rule must be subject to the right of any inhabi- 
tant to take from the Ubrary for perusal a«y book in it — the time 
and manner of taking and returning it to be regulated by the 
voice of die district. 

If a book be destroyed or damaged, there is no power in the 
district to make the person so destroying or damaging it pay for 
it. It would, however, be competent for the inhabitants to di- 
rect the librarian not to deliver a book to a person who had not 
returned one previously taken out by him, or until he had made 
reparation for any injury it maj have sustained while in his 
hands. 

The Trustees of school district No. in the town 

of Homer, ex parte. 

Taxable inhalMtants only can be included in tax lists. 

if a person moves into a district after a tax list is made out, he cannot be includ- 
ed in it. 

If a person renvoves from a district after a tax list is made out, he may be prose- 
cuted for his part «f the tax if he does not pay veluntarlly. 

In school district No. in the town of Homer, a tax of 

^100 was voted to build a school-house, and at a subsequent 
meeting of the inhabitants an additional tax of $120 was voted 
for the same purpose. After tlie tax of $100 was assessed, and 
before the tax of ,1^120 was voted, A. B. sold his farm to C. D., 
and moved out of the district- C. D. moved into the district af- 
ter the tax of ij+jlOO was assessed and before the tax of $120 was 
voted. The question proposed was, whether A. B. and C. D- 
were liable to pay their proportion of either or both taxes? 

By John A. Dix, March 14, 1836. No person can be in- 
cluded in a tax list unless he is a taxable inhabitant residing in 
the district at the time the tax list is made out. Thus, if two 
taxes are voted at different times, one of $100 and another of 



292 CASES DECIDED BY THE 

^120, and after the first is assessed an inhabitant removes frora 
the district, and before the second is assessed his place is suppli- 
ed by another inhabitant, the person moving out of the district 
cannot be made to pay any portion of the second tax of $120, 
nor can the person taking his place be made to pay any portion 
of the first tax of §^100. But the person first referred to, al- 
though he has removed from the district, can be prosecuted (un- 
less he pays voluntarily) for that portion of the tax of f 100 as- 
sessed on him while he was an actual inhabitant of the district. 

The Commissioners of Common Schools of the town 
of Westfield, ex parte. 

If there are but two commissionei's of common schools in office, they may act 
as such until a third is appointed. 

In the town of Westfield one of the persons elected as com- 
missioners of common schools declined serving. The vacancy 
was not supplied by the proper authority, and the two other com- 
missioners transacted the ordinary business of the town in rela- 
tion to the common schools during the year. Among other acts 
performed by them, was the organization of a new school dis- 
trict. The right of two commissioners to act until a third was 
appointed having been called in question, the opinion of the Six- 
|>erintendent was solicited. 

By John A. Dix, March 14,. 1836. When one of the com- 
missioners of common schools refuses to serve, the two others 
may act untri a third is appointed. The vacancy should have 
h^QYt filled in the inode prescribed by law ; but yo« are not re- 
sponsible for the omission, and your powers, with respect to all 
matters within your jurisdiction, are as ample as they would be 
if the board was full in point of numbers. Any attempt to va- 
cate your proceedings on that ground will be fruitless. 

The Trustees of school district No. in the towo 

of Petersburgh, ex parte. 

A person hirins; out his services for a limited period fo an inhabitant of a schooJ 

district, must, if of age, be deemed a resident of the district, unless he has 

a family and domicil elsewhere. 
The last assessment roll of the town is not a guide, in making out a tax list, as 

to a person who became an inhabitant of the district after the roll was made 

out. 

In this case an individual came into school district No. in 

the towai of Petersburgh, and hired out his services for a limited 
period to an inhabitant of the district. The individual so hir- 
ing out his services had no family or domicil elsewhere, but had 
personal property worth more than fifty dollars over and abo¥^ 



SUPERINTENDENT OF COMMON SCHOOLS. 293 

fe'tuch as is exempt by law fiom execution. He moved into the 
district after the last assessment roll of the town was completed, 
and was not, of course, included in it. The question presented 
to the Superintendent was, whether he could be included in the 
assessment of a tax voted to build a school-house 1 

By John A. Dix, March 22, 1836. A person hiring out 
his services for a limited period to an inhabitant of a school dis- 
trict, must be considered as a resident of the district, if he is of 
age, unless he has a family and domicil elsewhere. It is not 
necessary that his name should be on the last assessment roll of 
«he town, in order to make him liable to be taxed. The trustees 
must see that every taxable inhabitant residing in the district is 
included in the tax list. The last assessment roll of the town is 
to be considted only so far as valuations of property are concerned : 
and it is not a guide, from the necessity of the case, where a 
person has become an inhabitant of the town and the district 
subsequently to the time of its completion. In every such case 
the trustees must make a valuation of the property of the per- 
sons coming into the district, giving notice in the manner re- 
quired of town assessors in making valuations of taxable pro- 
j>erty. 

The Trustees of school district No. 1 in the town of 
Nanticoke, against the Commissioners of Common 
Schools of said town. 

If a man is employed in a school district in taking care ot a mill from fall ul! 
spring, his children must be enumerated in the district. 

The facts of this case are stated in the Superintendent's opi- 
nion. The question submitted was, whether the children of the 
person referred to in the statement presented to the Superinten- 
dent could be enumerated in district No. 1 in the town of Nan- 
ticoke. 

By John A. Dix, March 25, 1836. The Sui)erintendent of 
Common Schools has received a statement submitted by the 
trustees of school district No. 1 in the town of Nanticoke, and 
the comiTiissioners of common schools of said town, in the fol- 
lowing words : 

" In the aforesaid district is the following property, viz : A saw- 
mill and a dweUing-house owned by a non-resident of the town, 
the mill doing business say four months in a year. The owner 
employs a man in the fall to attend to (lie concerns about (he 
mill, who occupies the house till spring, and then removes. — 
Are the children of parents coming into the district under such 
circumstances, residents under the school law?" 

The children of the person living on the premises from fall 



5f94 CASES DECIDED BY THE 

until spring must be enumerated in the district. Although his 
residence is not permanent, he is an actual resident of the dis- 
trict on the 31st of December, and if his children are not enume- 
rated there, it is manifest that they cannot be in any other dis- 
trict in the state. 

The Commissioners of Common Schools of the town 
of Corinth, ex parte. 

If a teacher is taken sick, and another cannot be procured in time to have the 
school kept three months, the Superintendent will, on showing the facts, al- 
low the district a share of the public money. 

In this case a qualified teacher was employed in the fall of 
1835, in school district No. 7 in the town of Corinth, but after 
teaching several weeks he was taken sick, and was compelled 
to give up the school. The trustees immediately endeavoured 
to procure another teacher, but they did not succeed in time to 
have the school taught three months by a qualified teacher be- 
fore the 1st of January, 1836. The trustees made a full state- 
ment of the facts in their annual report to the commissioners of 
common schools, who set apart and retained in their hands the 
amount of money to which the district would have been entitled 
if a school had been kept in it three months during the preced- 
ing year by a qualified teacher, and referred the case to the Su- 
perintendent for his decision. 

By John A. Dix, April 11, 1836. I have received your 
statement in lelation to school district No. 7 in the town of Co- 
rinth. The case is one which demands the interposition of the 
Superintendent of common schools in order to save the equitable 
rights of the district. The deficiency in respect to the time dur- 
ing which a school was kept by a qualified teacher, was occa- 
sioned by a cause over which the trustees of the district had no 
control. Their intention to comply with the requirements of the 
law was frustrated by necessity : no diligence or exertion on their 
part was wanting, and the district must not suffer. You were 
right in referring the matter to the Superintendent; and you are 
accordingly authorized to pay the trustees the public money re- 
tained in yovir hands. 

The Commissioners of Common Schools of the 
town of York, ex parte. 

Separate neighborhoods can only be set oft' to form districts with the inhabitants 
of adjoining states. 

In consequence of a difficulty in one of the schools districts in 
the town of York, the commissioners of common schools of the 



SUPERINTENDENT OP COMMON SCHOOLS. 295 

town set off a part of the inhabitants as a separate neighborhood. 
No part of the town or the county of which it was a part was 
adjacent to the territory of another state. The question present- 
ed by the commissioners to the Superintendent was, whether in 
this proceeding they had acted without legal authority? 

By John A. Dix, April 12, 1836. Separate neighborhoods 
can only be set off for the purpose of forming districts with in- 
habitants of an adjoining state. The proceeding of the com- 
missioners in the case referred to, was, of course, illegal. They 
have a right to form a new district, and in such case, the school- 
house may be appraised, so that the persons set off to the new 
district may have their proportion of its value. 

The Trustees of school district No. 8 in the town of 
Nichols, ex parte. 

If a new district, formed with the consent of the trustees of the districts from 
which it was taken, has gone on in good faith to build a school-house, and a 
school has been kept ten months, irregularities in its formation will not be no- 
ticed, after the lapse of two years, if the record of the proceedings of the 
commissioneis in forming it is regular, and no appeal has been made. 

Commissioners of common schools will not be permitted to deny the legal exist- 
ence of a district when their own records show it to have been regularly 
formed. 

In April, 1834, the commissioners of common schools of the 
town of Nichols formed a new school district by the designation 
of district No. 8. The trustees of the districts from which it was 
taken having consented to the alterations in their respective dis- 
tricts, it was immediately organized and a school-house built. 
The district was reported to the Superintendent of Common 
Schools as a regularly organized district in 1835 ; but on appor- 
tioning the public moneys in April, 1836. among the school dis- 
tricts in the town. No. 8 was refused a share by the commission- 
ers on the ground that it had not been regularly organized, and 
therefore had not a legal existence. The opinion of the Superin- 
tendent was desired as to the propriety of their course in thus 
excluding the district from the apportionment. 

By John A. Dix, October 15, 1836. I have received your 
statement in relation to school district No. 8 in the town of Ni- 
chols. 

This district was formed, as is admitted, in April, 1834; but 
it is alleged that the commissioners did not in all respects pursue 
the course required by law. The proceedings of the commission- 
ers, as entered of record in the office of the town clerk, appear 
to be regular, and it seems that the consent of the trustees of 
the several districts out of which No. 8 was formed, was duly 
obtained and recorded. In the month of July ensuing, a com- 



296 CASTES DECIDED BY THE 

munication was addressed to the Superintendent of Ck)mmon 
Schools, complaining of the alteration in one of the districts by 
the formation of No. 8. To this apphcation an answer was im- 
mediately returned, stating that it could not be received as an 
appeal, becau,se the course prescribed by the Superintendent in 
such cases had not been pursued, and that the matter of com- 
plaint would be proniptly investigated when it should be present- 
ed in proper form. The application has never been renewed ', 
the n«w district has been organized two years, a school-house 
has been built,, and during the last year a school has been kept 
in it nearly ten months. Und«r these circumstances, the new 
district has acquired equitable rights which ought not to be dis- 
regarded in an examination of this subject. Although in form- 
ing the district all the formalities prescribed by law may not 
have been complied with, no irregularity is shown by the record,, 
and its accuracy should have been impeached at the time it was 
made-,, if it was intended to disturb the proceedings. You state 
that some legal proceedhig^ which were instituted in this case 
were settled by a decision adverse to the trustees of tlie district - 
!>ut it does not appear that the principles of the decision touched 
the question: of the organization of the district. The commis- 
feioners of common schools have no authority to pass judgmoBt 
upon the legality of its organization, as they have done in direct 
opposition to the evidence fLirnished by their own record, and their 
reports to the Superintendent of Common Schools. They might 
have annulled the district; but so long as their own records show 
it to have been regularly formed, they should not be allowed to 
dispute th& fact. It is only by a direct adjudication by a court 
of law, upon the legality of their proceedings in forming the dis- 
trict, a decisiofi of the Superintendent, or an order properly made^ 
by themselves rescinding their former proceedings and annuUing 
the district, that its organization can be disturbed. The com- 
missioners may, when distributing the public moneys, exclude a 
district on the ground that it has not a legal existence ; but they 
cannot do so when their own records and leports show the con- 
trary. In such a case, the remedy must be provided in one of 
the modes before susfffested. 



'&o^ 



The Commissiooers of Common Schools of the town 
of Spencer, ex parte. 

If the annual report of a school district is received by the cernmiasioners beforii 
the public moneys are distributed, it is in time, and the district should be, 
included in the apportionment, 

The commissioners of common schools of the town of Spen- 
cdf met on the first Tuesday of April, 1836, to make an appor- 



SUPERINTENDENT OF COMMON SCHOOLS. 297 

Uonment of the public moneys to the school districts in the town ; 
but the annual report of school district No. 3, which had been 
handed to the town clerk, having been mislaid, the final appor- 
tionment was postponed until the second Tuesday of April. 
Between the first and second Tuesday of April, the annual re- 
port of school district No. 2, which had not before been delivered 
to the town clerk, was handed in to the commissioners ; and the 
question presented by them was, whether district No. 3, the an- 
nual report of wliich had not been delivered before the first Tues- 
day of April, should be included in the apportionment? 

By John A. Dix, May 7, 1836. If a report from a school 
district is handed in at any time before the commissioners have 
apportioned the public money, it is in time, and should be included 
in the apportionment. The law requires the reports to be made 
on or before the first of March, and yet they are to be received at 
any time before the apportionment. The apportionment is requir- 
ed to be made on the first Tuesday of April, whether all the reports 
are received or not; but if this duty is neglected, it must, from 
the necessity of the case, be discharged on a subsequent day. I 
consider the apportionment in your town as having been made 
on the second Tuesday of April ; and for the saine reason that 
the'ireport of No. 3 was acted on and a re-apportionment made 
after the proper time, the report of No. 2 should have been re- 
<^ived, and the proper allowance made to that district. If the 
apportionment which was to have been made on the first Tues- 
day of April, had not been delayed by reason of a mistake on 
the part of the town clerk. No. 2 could not have come in and 
claimed an allowance ; but the distribution having been postpon- 
ed, its equitable rights ought to have been saved. 

The Trustees of school district No. 1 in the town of 
Lawrence, against the Commissioners of Common 
Schools of said town. 

Errors committed by the commissioners of common schools in apportioning the 
school moneys, cannot be corrected by iheir successors in office, without an 
order from the Superintendent. 

The facts of this case are set forth in the Superintendent's order. 

By John A. Dix, May 12, 1S36. This is a case submitted 
by the commissioners of common schools of the town of Law- 
rence, and the trustees of school district No. I of said town, with 
respect to an error in the report of that district for the year 1834. 
The principal facts are as follows : The trustees of said district 
in their annual report for that year omitted two of the inhabi- 
tants in stating the •' names of parents," and their six children 
were consequently not included in ihe column of children be- 



298 CASES DECIDED BY THE 

tween 5 and 16 years of age. The mistake occurred in copy- 
ing the original draught of the report, as the footing of the co- 
lumn referred to contained six more than the addition of the 
figures in the column amounted to. Soon after the apportion- 
ment of the school moneys in April following, the error was dis- 
covered, and the trustees have regularly applied to the commis- 
sioners of common schools during each subsequent year to the 
present time to allow them the amount, to which they were 
equitably entitled, and which they would have received but for 
the mistake referred to. The commissioners have dechned mak- 
ing the allowance, from the belief that they had no authority to 
do so. The whole matter is now submitted to the Superinten- 
dent for his direction. 

The commissioners of common schools decided correctly in 
declining to act for want of authority. They are authorized to 
correct errors in the reports, on which the apportionment is to be 
made by them ; but they have no authority to correct errors in 
the reports of preceding years, and thus modify the apportion- 
ments made by their predecessors in office. All such cases must 
be brought before the Superintendent for an equitable adjudica- 
tion. After the lapse of time which has occun-ed in this case, he 
would not interfere, if the trustees of No. 1 had not regularly 
presented their claim to the commissioners of common schools 
every year since the error occurred, with the supposition that the 
latter were authorized to correct it. As there has been no want, of 
diligence on their part, and as the equity of the case is undenia- 
ble, it is Ordered, that the commissioners of common schools of 
the town of Lawrence pay to the trusiees of school district No. 1 
in said town, out of the next moneys which shall come into their 
hands for distribution, such sum as that district would have re- 
ceived in the year 1834, if the six children accidentally omitted 
had been included in the annual report of the district for that 
year. 

The Trustees of school district No. 9 in the town of 
Barre, against the Commissioners of Common 
Schools of said town. 

If public money is paid to a teacher not qualified, and the trustees or inhabitants 
replace, out of their private funds, the amount so paid, the district will be al- 
lowed to participate in the apportionment of the public moneys. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, May 14, 1836. The Superintendent of 
Common Schools has examined the statement of the trustees of 
school district No. 9 in the town of Barre, in relation to the pay- 
ment of a portion of the school moneys received by that district 



SUPERINTENDENT OF COMMON SCHOOLS. 299 

ill 1835, to a teacher not qualified according to law. In the 
truth of the statement, so far as they know them, the commis- 
sioners of common schools of the town concur. 

By this statement it appears that the sum of $12.50, received 
from the commissioners of common schools in April, 1835, and 
being a part of the school moneys apportioned to the district 
aforesaid, was paid to a teacher, who did not, during any part of 
her term of instruction, hold a certificate of qualification from the 
inspectors of the town dated within one year. She had, however, 
taught 8 seasons. During the year 1834, she taught the school 
in an adjoining district, and she had at different times received 
certificates of quahfication. Under these circumstances, the trus- 
tees, who etn ployed her, neglected to have her examined by the 
inspectors ; and their successors in ofiice, not being aware that 
this duty had been neglected, paid her the sum of $12.50 out 
of the public moneys on account of her wages, supposing her to 
be qualified. Soon afterwards it was discovered that she had 
not a certificate dated within a year. In their annual report for 
the year 1835, the trustees stated, that of the sum of $37.50, 
received from the commissioners of common schools, $25 had 
been paid to a teacher duly qualified, and $12.50 to a teacher 
not qualified ; and the commissioners of course refused to appor- 
tion to the district a share of the public money for the year 1836. 

The payment of any portion of the public money to a teacher 
who is not qualified as the law directs, is a violation of the sta- 
tute. It is, indeed, not a payment in law ; and the trustees, by 
whom it is made, may be prosecuted for the amount as for a 
balance remaining in their hands. But would the recovery of 
the amount so paid save the equitable rights of the district? 
Clearly not. If it was not a payment in law, an equal sum 
ought of right to be raised by a rate bill against those who sent 
their children to school during the term for which it was paid : 
and this would not, without the equitable interposition of the Su- 
perintendent, prevent a forfeiture of the right of the district to 
participate in the distribution of the public money for the present 
year. 

The equities of this case are clear. The teacher, though not 
legally qualified, was so in point of fact. The trustees who paid 
the money were not aware of the delinquency of their predeces- 
sors in office, until a short time before they made theii annual 
report; and they have, by stating the whole truth in that report, 
given the strongest evidence of having acted in good faith. 

Under all the circumstances, the Superintendent deems it equi- 
table to allow the district its share of the public money, if the 
sum of $12.50 shall be raised and replaced out of their private 
funds by the trustees or inhabitants. In this case, that amount 



300 CASES DECIDER BY THE 

xirnst be held by the trustees as pubUc money, and expended dur- 
ing the present year in payment of the wages of quahfied tea- 
chers precisely as though it had been received from the commis- 
sioners of common schools; and it must be accounted for in 
tlie next annual report of the district. 

It is accordingly ordered, that the commissioners of common 
schools of the town of Barre, on receiving satisfactory evidence 
that the foregoing requirements have been complied with, ap- 
portion to said distiict No. 9, out of any school moneys in their 
hands, or to be in their hands, such sum as that district would 
have been entitled to receive for the present year, if the amount 
apportioned to that district in 1835 had been applied to the pay- 
ment of the wages of a qualified teacher. 

The Commissioners of Common Schools of the town 
of Harrisburgh, ex parte. 

Permanent town funds must be applied exclusively for the benefit of the com- 
mon schools in the town. 

In this case the opinion of the Superintendent was requested 
by the commissioners of common schools of the town of Harris- 
burgh, as to the proper application in joint school districts of mo- 
neys derived from permanent town funds. The town of Harris- 
burgh had a local fund, which was once a poor fund, but v,/hicbj 
when the town poor became a county charge, was appropriated 
to the use of common schools in the town. The adjoining towns 
had no such funds; and the question proposed was, whether the 
inhabitants of those towns belonging to joint districts lying partly 
in the town of Harrisburgh could be benefited by the town fund 
of the latter. 

By .ToiiN A. Dix, May 31, 1836. It has been settled, in 
several cases, by the Superintendent of Common Schools, that 
the proceeds of school lands must be applied exclusively for the 
benefit of the inhabitants of the town to which the lands belong. 
Thus, if a joint school district receives from one of the towns of 
which it constitutes a part, a portion of the proceeds of the school 
fund belonging to the town, the inhabitants of the other town or 
towns cannot be benefited by the amount so received. For the 
purpose of applying it exclusively to the use of the inhabitants of 
that part of the district lying in the town to which the fund be- 
longs, two rate bills must be made out when the public money is 
insufficient to pay the wages of the teacher. One rate bill m«sL 
be against the inhabitants of the district residing in the town to 
which the fund belongs, and the other against the inhabitants of 
the district residing in the other town or towns; and the former 
must be credited with the amount derived from that fund. 



SUPERINTENDENT OF COMMON SCHOOLS. 301 

The rule with respect to all permanent town funds should be 
the same. Thus the poor fund which has, by a vote of the in- 
habitants of the town to which it belongs, been appropriated to 
the use of the common schools, in consequence of abolishing the 
distinction between town and county poor, should be faithfully 
applied to the use of the schools in the town. The act of 27th 
April, 1829, provides, (sec. 8,) that the interest of the common 
Mihool fund established in this manner shall be "applied to the 
support of common schools of such town," that is, of the town to 
which the fund belongs. 

A different rule prevails with regard to the school moneys de- 
rived from the common school fund of the state, from taxation, 
and from accidental sources of contribution. In all such cases 
the general rule of apportionment and expenditure prevails. 
Thus if a joint district, lying partly in two towns, derives from 
those sources different sums of money in proportion to the number 
of children in each, the two sums must be applied equally to the 
benefit of all in the district, although one of the towns may have 
voluntarily raised twice the amount it derives from the school 
fund of the state, and the other only an equal amount. 

I do not see how these rules affect the apportionment to be 
j^iade by the commissioners of common schools. They distri- 
bute the school moneys, in all cases, according to the number of 
children in each district, whether joint or single, residing in the 
town. But it is a matter relating solely to the application or 
expenditure of the money by the trustees of school districts, who 
must see that it goes to the benefit of those who are entitled to it. 
{ suppose however, my opinion is desired by way of advice or 
direction to the trustees of school districts. ,]r 

79l 

The inhabitants of joint school district No. 2 in the 
towns of Otsego and Hartwick, against the trustees 
of said district. 

If trustees engage a teacher for a specified term, and the inhabitants of a srhoot 
district, without good cause, withdraw their children from the district school, 
and send them to a private teacher, the Superintendent will allow the greater 
part of the public money to be applied to the term ibr which the teacher was 
^rngaged by the trustees. 

T'le inhabitants of school districts should sustain the trustees in employing com- 
petent teachers, and in their efibrts to advance the standard of education. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix. June 6, 1836. In the matter of the appli- 
cation of certain inhabitants of school district No. 2, lying partly 
in the town of Otsego and partly in the town of Hartwick, for a 
division of the school moneys between the sinnmer and winter 
terms, it being understood to be the intention of the trustees to 



302 



CASES DECIDED BY THE 



appropriate the whole amount to the summer school, it appears, 
that at the late annual meeting in the district no vote was 
taken with regard to the application of the public money; and 
immediately afterwards the trustees hired a teacher for twenty 
dollars per month, the compensation usually paid to male teach- 
ers for winter schools. Some of the inhabitants of the district 
being dissatisfied with the proceedings of the trustees, on account 
of the high wages to be paid to the teacher, set up a private 
school, and engaged a female to teach it, thus withdrawing from 
the district school a large number of the children, who would 
otherwise have contributed to its support. 

This proceeding on the part of the persons who have sepa- 
rated themselves from the rest of the district, and are contri- 
buting to break down the common school, is highly censura- 
ble. The sole objection to the proceedings of the trustees is that 
they have agreed to pay higher wages than is necessary for a 
common school. It is not alleged that they have not engaged a 
competent teacher; on the contrary, it is stated that one of the ob- 
jects of employing a teacher at high wages is to enable some of 
the scholars to receive instruction in higher branches than are 
usually taught in the district. So long as this object does not 
conflict with the interest of those who are pursuing less advanced 
studies, it deserves to be encouraged; and the Superintendent is 
unable to perceive that the course of the trustees has been oppres- 
sive or indiscreet. The great evil of the common school system is 
the want of competent teachers. This deficiency could be readily 
suppHed, if the inhabitants of school districts were willing to pay 
persons well qualified to teach, a sufficient compensation to secure 
their services. The trustees of this district have shown a desire to 
elevate and maintain the character of their school: and so far 
as is proper the Superintendent feels disposed to sustain them in 
the effort. The district receives between fifty and sixty dollars 
of public money; enough to pay the wages of the teacher for near- 
ly one-third of the entire year. Surely so liberal a contribution 
ought to secure a corresponding liberality on the part of those im- 
mediately benefited by it. It may seem unequal to pay at the 
same rate for children who study the common branches and for 
those who pursue studies of a higher grade. But from the na- 
ture of the common school system no distinction can be made. 
Ultimately all are equally benefited; for as small children ad- 
vance, their contributions do not increase in proportion to the stu- 
dies which they pursue, and thus their tuition costs them less than 
they would be compelled to pay if such a distinction were made. 
Every inhabitant of a school district who has children is inte- 
rested in maintaining a respectable school. If the policy of a 
school district is to employ a teacher who is merely competent to 



SUPERINTENDENT OP COMMON SCHOOLS. 303 

give instruction in the first rudiments, those whose children are 
young may be gainers, in a pecuniary point of view, by reason 
of the low wages paid ; but they should not lose sight of the fact, 
that if the same policy is pursued, their children, as they advance 
to manhood, will not enjoy those facilities for the acquisition of 
knowledge which are necessary to make them respectable mem- 
bers of society, and to enable them to enter into successful com- 
petition with others for its honors and emoluments. 

The Superintendent has always been accustomed to direct, 
when applications have been made to him for the purpose, that 
the public moneys received by a school district should be equally 
divided between the summer and winter terms. This case is 
distinguished from any other which has come before him. Al- 
though the trustees have acted in good faith, and have employ- 
ed a teacher, against whom no charge is brought, a portion of 
the inhabitants have set up a school in opposition to the one es- 
tablished by the trustees, because they are unwilling to pay their 
just proportion of his wages. If by allowing the whole of the 
public money to be applied to the sunmier term, the Superin- 
tendent were sure that the effects would fall on those only who 
have taken this course, lie would not interfere. But as innocent 
persons might suffer, and as he is unwilling to abandon altoge- 
ther the principle of dividing the school moneys between sum- 
mer and winter terms : 

It is hereby ordered, that one-third of the public money receiv- 
ed by the trustees of school district No. 2 aforesaid, for the pre- 
sent year, be reserved for the fall or winter term; and that the 
remaining two-thirds may, in their discretion, be applied in whole 
or in part to the summer term. 

(anonymous.) 

Children in county poor-houses cannot be sent to a district school, excepting 
by voluntary agreement with the trustees. 

By John A. Drx, June 29, 1836. Superintendents of the 
poor cannot claim, as matter of right, the admission of pauper 
children into the common school of the district in which the 
county poor-house is established. If they are admitted, it must 
be by a voluntary agreement with the trustees of the district. 

(.ANONYMOUS.) 

When trustees of districts find it necessary in assessing a fax to proceed in the 
same manner as assessors of towns, they are aliowi d twenty days in addition 
to the month within which the tax list is required by law to be made out. 

By John A. Dix, June 30, 18.^6. When, in consequence 
of a claim by an individual to a reduction of his valuation, it be- 



304 CASES DECIDED BY THE 

comes necessary to proceed in the same manner as the assessors 
of towns are required by law to do, tiie trustees of a school dis- 
trict are allowed, according to the construction which I have 
given to the statute, twenty days to complete the assessment of 
a tax in addition to the month within which the tax must be 
assessed and the tax list made out. Suppose trustees assess a 
tax twenty-five days after it is voted, and on that day a person 
claims a reduction. It is their duty to give a notice of twenty 
days, and then to meet and review their assessment. But if their 
right to complete the assessment expires at the end of the month 
after the tax is voted, it will be necessary to call another meeting 
with a view to vote the tax anew. By the construction above 
given, the two provisions are reconciled, and the embarrassment 
referred to can never occur. The law gives a twofold direction 
to the trustees, and both must be obeyed. The tax list must be 
made out within one month, but the meeting for reviewing the 
assessment is an independent act, and the time allowed for per- 
forming it must be deemed to be exclusive of the time prescribed 
for assessing the tax. If a different construction were adopted, 
it would be necessary that every tax list should be made out 
within ten days after the tax is voted, in order to enable the trus- 
tees to be prepared for a claim to a reduction. An interpreta- 
tion which shall avoid this inconsistency and save both provi- 
sions of the law, is right in itself, and does not, as I perceive, 
violate any settled rule of construction. 

(anonymous.) 

If the assessment of a tax is delayed by an appeal, the time is not to be comput- 
ed as part of the month within which the tax list must be made out. 

By John A. Dix, July 2, 1836. Where the assessment of 
a tax is delayed by an appeal, the time intervening between the 
presentation of said appeal and the decision thereon, is not to be 
computed as a part of the month within which the tax list is re- 
quired to be made out. The regulations of the Superintendent 
relating to appeals, provide, that "after copies of the appeal in 
any case have been served, all proceedings, from the operation 
of which relief is sought, will be suspended until the case is de- 
cided." While an appeal is pending, the proper officers have no 
authority to act, and when that disability is removed, their rights 
and the rights of those whose agents they are, are not to be pre- 
judiced by a delay for which they are not answerable. 



SUPERINTENDENT OF COMMON SCHOOLS- 305 

The Commissioners of Common Schools of the town 
of Chatham, ex parte* 

Tho number of a joint school district should not be changed without the concur- 
rence .of the commissioners of all the towns within which the district partly 
lies. 

This was an application for the opinion of the Superintendent 
as to the authority of the commissioners of common schools of 
the town of Chatham, to alter the number of a school district ly- 
ing partly in that town and partly in an adjoining town. 

By John A. Dix, September 1, 1836. The commissioners 
of common schools of one town should not alter the number of 
a school district lying partly in another town without thecx)ncur- 
rence of the commissioners of the latter. By referring to sul). 
No. 3 of sec. 19 of the common school act, (IRS. page 470,) 
you will perceive that the commissioners of common schools in 
each town are required " to describe and number the school dis- 
tricts, and to deliver the description and numbers thereof in writ- 
ing to the town clerk," &c. The specification of the powers of 
the commissioners under this section, has reference to single dis- 
tricts, or districts lying wholly within the limits of one town. 
But with respect to joint districts, or districts lying partly in 
several towns, none of those powers can properly be exercised, 
excepting with the concurrence of the commissioners of all the 
towns in which such districts partly lie. The numbering of 
a district may be considered as an act pertaining to the regula- 
tion of the district; and by reference to section 20, page 471, I 
R. S. you will perceive that in respect to joint districts, or districts 
formed out of two or more adjoining towns, the concurrence of 
the major part of the commissioners of each of such adjoining 
towns is necessary, in order to "regulate" or alter them. When, 
therefore, the number of a joint district is altered, the commis- 
sioners of all the towns of which such district constitutes a part, 
should meet together and concur in the alteration, and the new- 
number must be delivered in writing to the town clerk of each 
town. 

Harvey Loomis, a taxable inhabitant of joint school 
district No. 1 in the towns of Milton and Ballston, 
against the Trustees of said district. 

If a person removes from one school district into another in the same vilJagt*. 
;»nd takes lodgings for his family until he can find a permanent place of resi- 
dence to suit him, he is a taxable inhabitant of the district into which he ha« 
!*o removed. 

The facts of this case are stated in the Superintendent's or- 
der. 

20 



306 



GASES DECIDED BY THE 



By John A. Dix, September 10, 1836. On the 16th day 
oi January, 1836, the commissioners of common schools of the 
towns of Milton and Ballston divided joint school district No. 1, 
Ij'ing partly in both those towns, and comprising within its boun- 
daries the village of Ballston Spa, and formed a new district by 
the desigriation of district No. 12. By this division, Harvey 
Loomis, who had for several years been a resident of said dis- 
trict, and of that part of it which was set off to No. 12, became 
an inhabitant of the latter district. About the first of May, the 
said Loomis removed with his family into that part of the former 
district which retained its original number, and took lodgings at 
the house of his brother-in-law, Reuben Westcott, having sold 
his dwelling-house in district No. 12, and surrendered the posses- 
sion thereof to the purchaser on the said first day of May. On 
the 7th of May a site was fixed, and a tax voted for a school- 
house in district No. 1. On the 26th of May, Harvey Loomis 
gave notice that he should claim a reduction of the amount of 
his assessment. The trustees made out their tax list on the 6th of 
June, having given twenty days' notice of the time and place at 
which they v/ould meet to review their assessment. At the time 
and place appointed, Harvey Loomis did not appear to claim a re- 
duction of the amount of his tax. He was therefore assessed on 
$20,000, the amount of his personal property as ascertained by 
the last assessment roll of the town, and was taxed ^80, his just 
proportion of the whole tax. From this proceeding he appeals, 
and claims a total exemption on the ground that he was not a 
resident of the district at the time the tax list was made out. 

The liability of Mr. Loomis to be taxed in district No, 1 de- 
pends altogether on the fact of his being a resident of the dis- 
trict at the time the lax list was made out. If he was so, he 
was liable to be taxed. If not. he was not taxable, and the trus- 
tees should not have included him in the tax list. The question 
of residence is one which is to be settled by the facts of the case, 
and with regard to these there is no dispute. Mr. Loomis went 
into district No. 1 with his family, and engaged rooms there un- 
til he could find a permanent place of residence. The act of 
removing from one house to another in the same village, even 
as preparatory to a future permanent removal from the county, 
did not, so far as regards the village and town, amount to a 
change of residence. The intention of establishing himself per- 
manently at some future time at a different place, if he should 
succeed in finding one to suit him, seems to the Superintendent 
to be conclusive against the position assumed by him, that be 
had changed his residence. The proposed change of residence 
is future and contingent, and must be consummated by an ac- 
tual removal ] and certainly such actual removal is altogether 



SUPERINTENDENT OF COMMON SCHOOLS. 307 

inconsistent with the intention to remove at a future time. Mr, 
Loomis is clearly taxable in the town. Did not the assessors in- 
clude him in the town assessment for the present year ? Doubt- 
less they considered it their duty to do so. The fact that Mr. 
Loomis went to the city of New-York with his family shortly 
after he took rooms at the house of his brother-in-law, Mr. West- 
cott; and afterwards travelled into the western part of the state, 
•does not, when taken in connection with other circumstances, 
vary the case ; nor does the fact of going to Troy in quest of a 
"■ suitable place for the intended permanent future abode of his 
family," amount to an actual change of residence. At the ter- 
mination of these several movements, he regularly returned to 
the village of Ballston Spa; and if his intention can be inferred 
from the facts, it would seem to have been to make that village 
his temporary place of abode until he could find a |)ermanent 
one. Certainly, there was not =!uch an actual removal as to 
terminate his residence in that village. 

The same reasoning is applicable to the question of his resi- 
dence in district No. 1. He ceased to be an inhabitant of dis- 
trict No. 12 v/hen he gave up the possession of his house and 
took rooms in the former district, and by vulue of this removal 
from a house in one district to a house in another in the same 
village, he became an inhabitant of the district into which he so 
removed, unless he lost his residence in the village altogether. 
This point having been disposed of, he must be considered an 
inhabitant of district No. 1 at the time the tax list was made 
out, and he was therefore taxable on his personal property for 
common school purposes He might have appeared and claimed 
a reduction of his tax, agreeably to his notice to the tnistees; 
but having failed to do so, the tax must be collected as assessed. 

It is hereby ordered, that the appeal of Harvey Loomis afore- 
said, be, and it is dismissed. 

(ano-nymous.) 

The coHer.tor of a school district is answerable for moneys lost to the district by 
his neglect, though he may not have given a bond to the trustees. 

If the term of service of the trustees and collector has expired, and a warrant 
for the collection of a school bill has run out in the hands of the latter, the 
successors of such trustees must renew the warrdnt and direct it to the suc- 
cessor of such collector. 

By John A. Dix, September 12, 1836. If by the neglect 
of a collector, moneys which might have been collected by him 
within the time limited, are lost to the district, he is liable for 
the amount, whether he has given a bond or not to the trustees. 
The bond is an additional security ; but if it is not ref|uired of 
him, he is not released from any obligation which the law im- 



308 CASES DECIDED BY THE 

j)oses on him. The trustees may require a bond of the colkc- 
tor or not, as they please. If they do, they may, in case of his 
delinquency, look to his sureties : If they do not, they must look 
to him for an indemnity against losses sustained by the district. 
If the term of service of botli trustees and collector has expir- 
ed, and a warrant for the collection of a school bill has run out 
in the hands of the latter, the successors in office of such trus- 
tees must renew the warrant, and deliver it to the successor of 
the collector ; but the collector in whose hands the warrant runs 
out is answerable if there is any loss through his neglect. 

The Trustees of school district No. 2 in the town of 
Manheini, ex parte. 

Grass land and ploughed land are Taxable to the non resident owner : but a wood 
lot used for manufacturing maple sugar Is not taxable to such owner. 

In school distiict No. 2 in the town of Manheim, there were 
three pieces of land belonging to A. B. residing in another 
district. One piece was used for mowings another for tillage, 
and the third was a wood lot tised for manufacturing maple si>- 
gar. The owner had no agent or servant in charge of either 
piece. The question proposed was, whether either or all were 
taxable to the owner in district No, 2? 

By John A. Dix, September 12, 1836. A. B. is liable to 
be taxed on the piece of land "occupied as grass land and 
plough land," but not on the wood lot used for nianufacturing- 
maple sugar. The latter not being cleared and cultivated is no4 
taxable to him, as he is a non-i'csident,. and has no agent in tbe 
district in^ the occupation of it. 

William H, Strunk, a taxable inhabitant of school 
district No. 18 in the town of Ellicott, against the 
Trustees of said district. 

Commissioners of common schools have no authority to declare void the pro- 
ceedings of school district m-eeting3. 

Ir", through the neglect of trustees, a tax to build a school-house is not collected 
within a reasonable time, and before the collection is made, a new district iii 
formed and ar> inhabitant set off to it,^ the Superintendent will remit so much 
of the tax to build a school-house in the district from which such inhabitant 
was taken as was assessed to him. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, Septeinher 12, 1836. On the 16th day 
of November, 1835, the inhabitants of school district No. 18 in 
the town of Ellicott, at a special meeting called for the purpose, 
voted that the site of the school-house should be changed and a 
new house erected. The meeting was then adjourned to the 16th 



SUPERINTENDENT OF COMMON SCHOOLS. 309 

of November, and a notice given, by |X)9ting up the same, set- 
ting forth that the meeting would be held at the time and place 
agreed on, to meet the commissioners of common schools, for the 
purpose of establishing a site for the new school-house, and to 
attend to other business. At this meeting the commissioners de- 
clared the proceedings of the previous meeting void, and the inha- 
bitants voted to change the site of the school-house, and to raise 
a tax of ."ij;2U0 to build the new house. The tax was assessed ac- 
cordingly, and at the time it was so assessed. William H. Strunk, 
being a taxable inhabitant of said school district No. 18, was 
taxed itf;40. The tax has, however, not been collected of said 
Strunk. Subsequently to this proceeding, a new school district 
was formed by the commissioners of common schools, by the 
designation of district No. 3, and said Strunk was included in it. 
V tax has been laid in the latter for a school-house, and said 
.Strunk has paid his proportion of it, amounting to .>J539.83. He 
is now called on to pay the tax of s$40 which was assessed to 
him in district No. 18, in 1835, and he apphes to the Superin- 
tendent to decide whether he shall pay it. The trusteess of No. 
18 have presented their answer to the application, and it has 
l)ecn duly considered. The facts set forth by the appellant, not 
having been disputed in the answer of the trustees, are presumetl 
to be truly stated. 

Mr. Strunk was clearly liable to be assessed in district No. 18. 
lie was a taxable inhabitant at the time the tax list was made 
out, and there is nothing in the proceedings of the meeting, at 
which the tax was voted, to justify the Superintendent in set- 
ling them aside. The proceedings of the commissioners of com- 
mon schools, in declaring the meeting of the 16th of October 
void, were wholly without authority. They had no jurisdiction 
in the case; and as the proceedings of that meeting were not 
appealed from within the time limited by regulation, they will 
be presumed to have been regular. Nor have the commission- 
<»jrs any authority to fix a site for the new school-house, though 
they might as individuals, with a view to settle a controversy, act 
as umpires, at the request of the inhabitants, between the contend- 
ing parties. The notice for the adjourned meeting was regular, 
and there can be no good foundation for the pretence that the 
vote to raise a tax took any one by surprise. The vote to build a 
new school-house had been taken thirty days before, and the 
erection of the house given to the lowest bidder. The meeting 
was then adjourned for one month, and it was but reasonable to 
expect that at the time appointed the necessary sum would be 
voted for the erection of the house. Indeed, as the adjournment 
»vtis for one month only, no notice was necessary. At all events 



310 CASES DECII>ED BY THE 

as there was no legal defect, the proceedings will not, after the 
lapse of ten months, be disturbed. 

Mr. Strunk was, therefore, liable to pay his tax m district 
No. 18. But it is now to be considered whether he has not 
equitable rights, which may fairly be set up in bar of the pay- 
ment of the tax. It is proper to remark, that the tax in No. 18 
ought to have been promptly collected. In deferring it for so 
long a period, the trustees have been guilt}'^ of neglect, and 
others must not be prejudiced by the delay. That Mr. Strunk 
will be so prejudiced, without th^ interposition of the Superin- 
tendent, will be manifest, when it is considered how he wou'd 
have stood if they had performed their duty. It is provided that 
the commissioners of common schools, whenever a new district 
is formed, shall apportion to it a just proportion of the value of 
the school-house "and other property" of the districts from which 
it is taken. District No. 18 had no school-house ; but if the 
trustees had collected, with proper promptitude, the tax voted to 
build one, they would have had a sum of money, of which Mr, 
Strunk would have been entitled to a share, when he was set off 
to the new district. Through the neglect of the officers of the- 
district, that sum had not been collected ; but in the equitable 
jurisdiction of the Superintendent over all such matters, a reme- 
dy may readily be provided for those cases, in which, without 
his interposition, injustice would be done to third persons. It 
should be observed, in justice to the officers of the district, that the 
lime for delivering to the collector a warrant for the collection 
of a tax is not prescribed. But the statute provides that every 
tax shall be assessed and the tax list made out within one montb 
aftei it is voted ; and the Superintendent has always required 
that the warrant should be immediately delivered to the collector. 
Jf this had been done, and the tax collected, it would have been 
the duty of the commissioners in forming district No. 3 and an- 
nexing Mr. Strunk to it, to apportion to that district so much; of 
the sum collected to build a school-house, as it would have beeri 
entitled to receive upon the basis of his property. According to 
the rule of apportionment provided by law, the sum so allowed 
to district No. 3 would have been precisely what he would have 
paid, ($40,) and this sum would have been credited to him in re- 
duction of his tax in district No. 3 for building a school-house. 

The duty enjoined upon the Superintendent in this case, by 
every consideration of fairness and equity, is either to lemit the 
tax altogether, or to provide for apportioning to No. 3 so much of 
the value of the school-house in No. 18, or so much of the 
amount raised to build one, as it is justly entitled to receive on 
account of Mr. Strunk's taxable property. Either course would 
have, so far as respects the latter district, the same result. The 



SUPERINTENDENT OF COMMON SCHOOLS. 311 

amount of Mr. Strunk's tax would be raised upon the remain- 
ing inhabitants of the district. As the last of the two courses 
suggested would be attended with some embarrassment, and as 
the ends of justice will be equally attained by either, he prefers 
to remit the tax assessed on Mr. Strunk, and leave it to district 
No. 18 to make up the deficiency. 

It is accordingly ordered^ that the tax assessed on William H. 
Strunk, for buildmg a school-house in district No. 18 in the town 
of Ellicott, amounting to $40, be and it is hereby wholly remitted ; 
and the trustees are hereby authorized and required to re-assess 
the amount of said tax on the remaining inhabitants of said 
district. 

The Trustees of school district No. 6 in the town of 
Lowville, ex 'parte. 

When the site of a district school-house is changed pursuant to the act of 17th 
February, 1831, the inhabitants have power to direct the sale of the former 
lot and site. 

The site of the school-house in district No. 6 in the town of 
Lowville, was changed by a vote of two-thirds of the inhabitants, 
with the consent of the commissioners of common schools of the 
town, the district not having been altered from the time the 
school-house had been built. The question proposed to the Su- 
perintendent was, whether the trustees, under the act of Uth 
May, 1835, chap. 308, laws of 1&35, could dispose of the for- 
mer lot and site, or whether a vote of the inhabitants was neces- 
sary under the act of 17th Feb. 1831? 

By John A. Dix, September 26, 1836. By the act of 17th 
Feb. 1831, the inhabitants of a school district may, whenever 
the site of the school-house has been lawfully changed as there- 
in provided, direct the sale of the former site or lot and the build- 
ings thereon, on such terms as they shall deem most advantage- 
ous to the district. They may of course exchange the old site 
for a new one, if they have an opportunity of doing so ; but a 
vote of the inhabitants is necessary to authorize the trustees to 
sell or convey it, the site having been changed pursuant to the 
act referred to. 

(anonymous.) 

Whenever the site of a district school-house is legally changed, othervpise than 
by the act of 17th February, 1831, the trustees have power to sell and con- 
vey the former lot and site without a vote of the inhabitants of the district. 

By John A. Dix, SeiHemher 27, 1836. The act of 17th 
of February, 1831, prescribes the mode in which a school- 
house and site shall be disposed of, when the latter is changed 



312 CASES DECIDED BY THE 

m pursuance of the provisions of that act ; that is, where the 
district has not been altered after a school- house has been built 
or purchased. In every such case the inhabitants must give 
their direction as to the terms of the sale, and the trustees may 
convey the lot in pursuance of such direction. 

Section 4, of the act of May 11, 1835, chap. 308, laws of 
that year, authorizes the trustees of a school district, whenever 
the site of the school-house shall have been legally changed, to 
sell and convey the former site and the building or buildings 
thereon, on such terms as they shall deem advantageous to tla« 
district. 

This act was intended to reach cases which were not provided 
for by the act of 1831; as where a district has been altered af- 
ter a school-house has been built or purchased. In such a case, 
there was no power to dispose of the former site, as the provisions 
of the act of 1831 were applicable only to unaltered districts. 

The only question, which can arise is, whether the act of 
1831 is so far modified by the act of 1835, that the latter has 
become applicable to cases arising under the former 7 I am of 
opinion that the act of 1831 is not affected by the provisions of 
the act of 1835. The 3rd section of the latter, provides that 
" those parts of the provisions of the Revised Statutes which are 
inconsistent with the provisions of this act are hereby repealed." 
This section was originally reported as a separate bill, but on its 
final passage it was incorporated with the other sections of the 
act of 1835, so that in fact the repealing clause was intended 
to apply only to the subject matter of the 3rd section. This re- 
ference to the legislative history of the act would not be conclu- 
sive as to its intention, if its language was inconsistent with it. 
But it will be observed that the repealing clause is applicable only 
to such parts of the Revised Statutes as are inconsistent with the 
provisions of the act of 1835. The act of 1831 does not con- 
stitute a part of the Revised Statutes, although by that act one 
section of the statute entitled " Of common schools," was re- 
pealed. 

The terms of the act of 1835 are very comprehensive. They 
give trustees authority to sell and convey the former lot, <fec. 
" whenever the site of the school-house in any district in this 
etate shall have been legally changed ;" and yet, as the act of 
1831 is neither referred to nor repealed, I am disposed so to con- 
strue the act of 1835 as to maintain the provisions of both in 
full force. There is no inconsistency in them. The former re- 
fers to a single class of cases, while the latter embraces all 
others. 



superintendent of common schools. 313 

(anonymous.) 

The public money cannot be paid to teachers for services rendered during the 

year preceding the receipt of such nioneys. 
The expense of conveying a teacher home cannot be paid by tax, or included 

in a rate bill. 
If trustees refuse to prosecute their predecessors for an unpaid balance, tiicre is 

no mode of compelling them to do so. 

By John A. Dix, September 27, 1836. Trustees of school 
districts have no light to pay the piibUc money received in April 
to teachers for services rendered before the preceding first of Ja- 
nuary. It must all be paid for services actually rendeied during 
the year in which it is received. 

The expense of conveying a teacher home is not a legitimate 
object of taxation, nor can the amount paid for tliat purpose be 
included in a rale bill. If paid at all, it must be by voluntary 
uubscription. 

If a former trustee has money in his hands belonging to the 
district, the trustees in office should prosecute him for the amount 
as an unpaid balance, sec. 102, page 486, 1 R. S. If they re- 
fuse to do so, I ki\o\n no way of compelling them. The only 
remedy is to turn them out of office at the end of the year, and 
put in others who will perform their duties. 

Every trustee who reftises or neglects to render an account of 
moneys received and expended, is liable to a penalty of $25, 
sec. 100, page 486, 1 R. S. The penalty may be recovered of 
eeich trustee separately. 

If trustees neglect to report at the proper time, a report ought 
to bo received from them subsequently, without insisting on the 
forfeiture. 

The Commissioners of Common Schools of the town 
of Almond, ex parte. 

Trustees of school districts must see to the execution of all contracts entered 
into by them; but this rule will not be allowed to interfere with the legal rights 
of third persons. 

Two trustees of a school district engaged a teacher for one 
year, in pursuance of the request of the inhabitants at a special 
meeting. Before the expiration of his term, new trustees were 
elected. The question arose whether the trustees who made the 
contract with the teacher should attend to the settlement of his 
accounts, or whether he must look to the trustees in office. 

By John A. Dix, October 19, 1836. The Superintendent of 
Common Schools has always required that trustees should see to 
the execution of all contracts entered into by them. This rule 
was designed as a prudential regulation for their government 



314 CASES DECIDED BY THE 

and not to be carried safar as to interfere with the legal rights 
of third persons. Thus, if notwithstanding the directions of the 
Superintendent, trustees go out of office without setthng with a 
teacher employed by them, he has no legal remedy against them ; 
and if he is compelled to seek redress through the judicial tribu- 
nals, he must bring his suit against their successors, or the trus- 
tees actually in office. The supreme court of this state (7 Wen- 
dell, page 181,) has decided that contracts for teachers' wages 
by trustees of school districts are binding on their successors in 
office.* This settles the whole question. 

The Clerk of joint school district No. 14 in the towns 
of Marcellus and Skaneateles, ex parte. 

A refusal to serVe as aft officer of a school district vacates the office. 
A refusal to serve must be shown by an express declaration, and cannot be in- 
fen'ed from a neglect to perform the duties of the office. 

The following question was presented for the decision of the' 
Superintendent by the clerk of joint school district No. 14 in 
the towns of Marcellus and Skaneateles : Does a neglect to act 
for any given time constitute a refusal to accept the office of trus- 
tee of a school district 1 For instance : A tax is voted, and the 
trustees omit to make out a tax list for one month. Can new 
trustees be then chosen? 

By John A. Dix, November 14, 1836. If trustees and other 
district officers are regularly chosen at an annual meeting, others 
cannot be elected in their places until vacancies occur, or until 
their term of office expires. A refusal to serve constituties a va- 
cancy. It appears to me that there must be an express declara- 
tion by the party of his determination not to act, in order to au- 
thorize a prosecution under the provision which annexes a pe- 
nalty of five dollars toa refusal to serve. Neglect of the duties 
of the office does not constitute such a refusal as is contemplated 
by the provision referred to ; for to such neglect (which by a de- 
cision of the supreme court, must be a general neglect, and not 
an omission to perform any specific act,t) a penalty of ten dollars 
is annexed ; and this penalty is only incurred in cases in which 
the party has not "refused to accept." A refusal to serve must 
therefore, I think, be shown by an express declaration to that 
effect, and cannot be inferred from a neglect to perform the du- 
ties of the office. 

* See a case reported atpage 191. 

f See a case presented by the inhabitants of this district, paige 164, 



SUPERINTENDENT OF COMMON SCHOOLS. 315 

The Commissioners of Common Schools of the town 
of Greene, ex parte. 

M a (ax is- raised in a school district for any object, and the whole amount is not 
required, the balance may be applied by vote of the district to any other au- 
thorized object. 

A tax was raiged in a school district in the town of Greene foe 
the purpose of building a school-house, and on account of a re- 
duction in the amount paid on the contract, as an offset to a 
part of the work not properly executed, the whole sum collected 
for the purpose was not expended. The question presented to the 
Superintendent was, whether the balance thus remaining in the 
hands of the trustees could, by a vote of the district, be appro- 
priated to any other object ? 

By John A. Dix, November 21, 1836. If a tax is voted 
for any object, and the whole amount raised is not expended, the 
inhabitants of the district may by vote apply it to any other ob- 
ject for which a tax may by law be voted. The trustees have 
no power to do so without such a vote. 

The Trustees of joint school district No. in the 

towns of Locke and Groton, ex parte. 

In assessing taxes injoini school districts, the last assessment roll in each town 
must be followed with respect to the taxable property within it, although the 
assessors of the two towns may have different standards of valuation. 

This was an application to the Superintendent for his direc- 
i;ion in a case in wiiich tlie taxable property of a joint school 
district was unequally assessed in consequence of the different 
standards of valuation assiuned by the assessors of the two towns 
in which the district ^vas situated ; the assessors of one town 
having, as the trustees alleged, assessed the property within it 
at its fidl value, while the assessors of the other had estimated 
the property within it at about one quarter of its real value. 

By John A. Dix, November 22, 1836. Taxes for common 
sichool purposes must be assessed according to the valuations of 
property as ascertained by the last assessment roll of the town. 
There is no authority to depart from it excepting in two cases 
specified in the common school act, viz : where a reduction is 
claimed, and where the valuations cannot be ascertained from 
the last assessment roll of the town. In joint school districts the 
roil of each town must be consulted as to the persons residing in 
each. If the assessors of the two towns have different standards 
of valuation there is no remedy for it. 1 have no power to vary 
the assessments of town assessors, nor do I know any mode of 
correcting such inequalities excepting Ijy the equalization to be 



316 CASES DECIDED BY THE 

made by the boards of supervisors. I regard the practice of as- 
sessing property at one half, and sometimes one quarter of its 
real value, as one of the greatest abuses that exist ; and it is 
difficult to comprehend how assessors, sworn to discharge their 
duties faithfully, should totally disregard in many cases the legal 
requirement which makes it incumbent on them to estimate pro- 
perty "at its full value, as they would appraise the same in pay- 
ment of a just debt due from a solvent debtor." In most ea- 
ses, doubtless, assessors consider themselves justifiable in adopt- 
ing the standards of previous years; but usage certainly consti- 
tutes no justification of such a practice, nor is a public officer 
warranted in abusing his official trust because his predecessor 
has done so before him. . 

The Trustees of school district No in the town 

of Bridgewater, ex parte. 

A tax cannot be voted for arrearages, or to reimburse trustees for moneys ex- 
pended by them, unless it appears by the vote that the money is to be applied 
to one of the objects for which taxes may by law be voted. 

This was an application for the opinion of the Superintendent 
with regard to the legality of a vote to raise a tax to pay certain 
arrearages due the trustees of one of the school districts in the 
town of Bridgewater, on account of fuel which they had provid- 
ed, and repairs made on the school-house and paid for by them. 
The vote did not specify the objects for which the expenditure 
was to be made, but stated generally that it was to reimburse 
tlie trustees for moneys expended by them. 

By John A. Dix, December 12, 1836. A tax " for arreara- 
ges " or " to reimburse the trustees for moneys expended by 
them," is not legal. Taxes can only be laid by the inhabitants 
of school districts for certain objects enumerated in the statute 
entitled " Of common schools;" and it must appear by the re- 
solution or vote imposing the tax, that the amount to be levied 
is to be appropriated to one of those objects. If the trustees of a 
district expend money for repairs or fuel, and the inhabitants 
wish to reimburse them, a vote to that effect may be passed, and 
a tax raised ; but the vote must show that the money is to be 
applied to reimburse the trustees for a sum or sums expended for 
repairs or fuel.* 

• See the case of the trustees of joint school district No. 17 in the towns of Ca- 
tharine and Catlin, page 218. 



SUPERINTENDENT OF COMMON SCHOOLS, 317 

The Trustees of school district No. in the town 

of Maryland, ex parte. 

If a special meeting is called for the piirf>ose of laying a tax to build a school- 
house, the notice is sufficient to justify the inhabitatits in voting a tax to pur- 
chase a house already constructed. 

In this case a notice was g^iven for a special meeting, setting 
forth that the object of the meeting was to raise money to build 
a school-house. The inhabitants being assembled, voted to pur- 
chase a liouse, which was offered to them for a school-house, 
and a tax was laid accordingly. The question submitted to the 
Superintendent was, whether the notice was sufficient to justify 
the proceeding? 

By John A. Dix, December 12, 183(3. The proceeding in 
your school district, in relation to voting a tax to purchase a school- 
house, was legal, and the money ought to be collected promptly. 
I suppose the only question is, whether the notice was sufficient? 
On this point there can be no reasonable doubt. A call of u 
meeting to raise money (o build a school-house, so clearly indi- 
cates the object that no objection can properly be made, if, after 
full consideration at the meeting, it is determined to purchase a 
house, instead of building one. 

A, B. a non-resident owner of property in school dis- 
trict No. 21 in the town of Chemung, ex parte. 

The residence of the parent is the residence of the child. 

If a non-resident owner of taxable property sends his children into the district in 
which such property lies, lor the purpose of attending school, they have a 
strong equitable claim to be received, unless by their admission the school 
would become too crowded. 

A. B. a taxable inhabitant of school district No. 21 in the 
town of Chemung, moved out of said district into an adjoining 
one, still retaining his property in the former, in which he had, 
during the preceding two or three years, paid for the erection of 
the school-house more than one-fourth part of its whole value. 
As he was desirous of continuing his children at the school in 
district No. 21, he sent them into the district and procured board 
for them in the neighborhood of the school-house, and sent them 
to the school until they were dismissed from it by the trustees, 
oi\ the ground that their parents were non-residents. The ques- 
tion presented to the Superintendent was, whether this proceed- 
ing on the part of the trustees was legal? 

By John A. Dix, December 12, 1836. I am sorry to say 
that according to the whole course of the decisions of the Superin- 
(endent, your children have not a legal right to attend the school 
m district No. 21, though you are taxable in that district. Their 



318 CASES DECIDED BY THE 

exclusion by the trustees cannot, however, be regarded otherwise 
than as exceedingly illiberal, unless the school would, by admit* 
ting them, become too crowded. The rule which the Superin- 
tendent established at a very early day, is that "the residence 
of the parent is the residence of the child, and that boarding 
children in a school district does not give them the right to at- 
tend tlie district school." The rule was considered to be in strict 
accordance with the intention of the law authorizinsf the con- 
venient division of towns into school districts, and was also deem- 
ed indispensable to guard against the evils of withdrawing from 
one school and conferring on another the support to which the 
former was justly entitled ; evils which would often be felt in the 
absence of such a rule. At the same time I have always consider- 
ed persons owning taxable property in a school district, though 
non-residents, as having a strong equitable claim to a privilege for 
their children in the school of the district in which they are tax- 
able. Their property contributes to support the school, and their 
children should equitably be allowed to attend, on paying their 
proper proportion of the teacher's wages. In this respect they 
stand on ground essentially different from that of persons send- 
ing children into districts in which they have no taxable pro- 
perty. This is one of the instances, however, in which a re- 
gard to the general design of the law cannot be made to bend to 
the equity of a particular case. Still I am sure that the exchi- 
sion of children from a school under such circumstances, though 
the trustees have the legal right, would be universally regarded 
as unjust and illiberal, unless by their admission the school would 
become so crowded as to interfere with the instruction of the chil- 
dren of resident parents. 

The taxable ifihabitants of school district No. 10 in 
the town of Schodack, ex parte. 

Colored persons may vote at school district meetings. 

This was an application for the opinion of the Superintendent 
by several of the taxable inhabitants of school district No. 10 in 
the town of Schodack, with regard to the right of colored per- 
sons, who had been assessed to pay highway toxes, to vote at 
school district meetings. 

By John A. Dix, December 27, 1836. Colored persons 
have a right to vote at meetinars in the school districts in which 
they reside, if they have the requisite qualifications of propert)'^, 
or if they have been assessed to pay highway taxes in the town 
during the year in which they vote, or the preceding year. The 
construction which has been given to the statute relating to the 
qualifications of voters in school districts, with respect to aliens. 



SUPERINTENDENT OF COMMON SCHOOLS. 319 

is considered equally applicable to this case.* Indeed, colored 
}>ersons are permitted to vote at popular elections under certain 
circumstances, and the construction referred to may, perhaps, be 
urged with greater force in their favor than in the case of aliens, 
who are not allowed in any case to vote at such elections. 

The taxable inhabitants of school district No. 6 in 
the town of Clarkstown, ex parte. 

In assessing a tax for school district purposes, personal notice to the persons inte- 
rested need not be given where a reduction is claimed, or where the valuations 
of property cannot be ascertained from the last assessment roll of the town. 

This was an application by the taxable inhabitants of school 
district No. 6 in the town of Clarkstown for the opinion of the 
Superintendent, with regard to the nature of the notice to be 
given when the trustees of a school district, in assessing a tax, 
do not follow the last assessment roll of the town. 

By John A. Dix, January 12, 1837. In assessing a tax, a 
personal notice is not necessary where a reduction is claimed, or 
where the valuation of taxable property cannot be ascertained 
from the last assessment roll of the town. The notice is such 
a one as town assessors are required to give: that is, a notice 
must be put up in three or more public places within the district. 

It might be supposed, at first glance, that under the provisions 
of sec. 80 of the revised statute in relation to common schools, a 
i)ersonal notice to the individuals itnmediately concerned was ne- 
cessary, as the trustees are required, in the cases for which those 
provisions are framed, "to ascertain the true value of the property 
to be taxed from the best evidence in their power, giving notice to 
the persons interested, and proceeding in the same manner as the 
town assessors," <fcc. But I am satisfied that the intention of 
the law was otherwise. If I err in this construction, it appears 
to me that a personal notice to every inhabitant would be neces- 
sary whenever a reduction is claimed. For if the property of an 
individual be assessed on the town roll at $10,000, and he claims 
a reduction to $5,000, all the other taxable inhabitants are in- 
terested in resisting the clainn, because if it is allowed, their own 
assessments must be relatively increased. The imposition of 
taxes in school districts is usually a matter of notoriety; and if, 
in cases where the town assessment roll does not furnish all the 
facts necessary to enable the trustees to assess them, or where an 
individual claims a reduction of the valuation of his property as 
ascertained by that roll, a notice is put up in three public places 
in the district, it can rarely happen that all concerned are not ap- 

* See a decision by A. C. Flagg, March 15, 1831, page 76, 



320 



CASES DECIDED BY THE 



prized of the proceeding-g of the trustees so as to have an oppor- 
tunity of protecting themselves against unjust assessmente. 

Pomeroy Jones, a taxable inhabitant of joint school 
district No. 5 in the towns of Vernon and West- 
moreland, against the Commissioners of Common 
Schools of said towns and of the town of Kirk- 
land. 

Proceedings void for want of authority will be declared so, on application to the 

Superintendent, after the expiration of the time limited for bringing appeals- 
Trustees of school districts should not give a general consent before hand to al- 
terations to be made in their school districts, but such consent should be limit- 
ed to specific alterations. 
If parties are apprized that proceedings are to be objected to on the ground of ille- 
gality, it is their own fault if they do acts, by virtue of such proceedings, with^ 
out assuring themselves that they are legal. 

The facts of the case are fully stated in the Superintendent's 
decision. 

By John A. Dix, January 23, 1837. This is an appeal by 
Pomeroy Jones, a taxable inhabitant of school district No. 5 ly- 
ing partly in the town of Yernon and partly in the town of West- 
moreland, from the proceedings of the commissioners of comiTion 
schools of said towns and of the town of Kirkland, in annexing 
to it part of school district No. 6 lying partly in the town of West- 
moreland and partly in the town of Kirkland, and from the pro- 
ceedings of the commissioners of the two former towns in form- 
ing school districts No. 21 and 22. The facts of the case are 
as follows : 

On the 14th day of March, 1836, the comrnissi oners of com- 
mon schools of the towns of Yernon, Westmoreland and Kirk- 
land set ofl' to joint district No. 5 in Yernon and Westmoreland, 
all that part of joint district No. 6 in Westmoieland and Kirk- 
land, which lies on the Seneca turnpike road. To the record 
of this alteration the consent of the trustees of neither of the 
districts is annexed. 

On the 22d day of March, eight days after the above altera- 
tion, orders were issued by the commissioners of common schools 
of the towns of Westmoreland and Yernon forming two new dis- 
tricts by the designation of districts No. 21 and 22. District No. 
21 was formed from part of No. .5 and from part of No. 2 in the 
town of Westmoreland, together with that part of district No. 6, 
which, by the order of the 14th of March, was set off to No. 5. 
To this alteration the consent of the trustees of district No. 5 is 
given : but neither the consent of the trustees of No. 6 nor of No. 
2 is made a part of the record. District No. 22 was formed from 
part of No. 5 and part of district No. 11 in Westmoreland. To 



SUPERINTENDENT OF COMMON SCHOOLS. 321 

the record of this alteration the consent of the trustees of both 
districts is annexed. 

As a preliminary question it becomes necessary to inquire 
whether the rules of the Superintendent, in relation to appeals, 
liave been complied with? It appears by reference to the papers 
submitted by the appellant that eig^ht months were allowed to 
elapse before his appeal was presented. His excuse for so great 
a delay is, that he was absent in Albany when the proceedings 
complained of took place. And that he could not, for a long 
time after his return, procure such proof of the illegality of the 
proceedings as to warrant an appeal. It is doubtless within the 
knowledge of the appellant that investigations are made by the 
Superintendent upon other grounds than an allegation of ille- 
gality. Proceedings, though strictly legal, may be set aside if 
found grievous to complainants. When proceedings are object- 
ed to because they are merely irregular, or because the objectors 
are aggiieved by them, appeals must be presented within thirty 
days. If no other reasons were urged in this case, the excuse 
offered by the appellant would not be considered sufficient. The 
facts were all within the compass of a few neighboring districts, 
and witli due diligence it w^ould have been extraordinary if they 
could not have been ascertained. But the appellant further al- 
leges that he has, since the last of October, discovered facts and 
proofs of which he had no previous knowledge; and which show 
the proceedings of the commissioners to be null and void. If 
this position can he established, the appeal will be entertained. 
Void proceedings, or acts done wholly without authority, will be 
pronoimeed void, when they are brought up for adjudication, 
although they may not have been objected to within the time 
limited for presenting appeals. 

The first defect in the proceedings of the commissioners is the 
want of the consent of the trustees of school districts No. 5 and 
6 to the alteration occasioned by the addition of part of the latter 
to the former. This defect does not render the proceedings void. 
The commissioners of common schools had authority to make 
the alteration without such consent; but it could not take effect 
until three months after notice in writing to some one or more of 
the trustees of each district. 

It is alleged by the commissioners of common schools of the 
towns of Westmoreland and Vernon, that the formation of dis- 
tricts No, 21 and 22 was agreed on by them on the 14th of 
March_, although the orders were not issued until the 22d. If this 
were so, the consent of the trustees of school districts No. 5 and 6 
to the alteration occasioned by adding to the former part of the 
latter, was requisite, to enable the commissioners of the towns of 
Westmoreland and Vernon to set off the part so added; otherwise 

21 



322 CASES DECIDED BY THE 

the alteration would not take effect until the expiration of three 
months after notice in writing to the trustees of both districts. 
But the order creating' district No. 21 shews on its face a want 
of authority on the part of the commissioners of common schools 
of the towns of Westmoreland and Yernon to form it. The 
district is, according to the order, formed from part of district Na 
5, lying partly in the town of Westmoreland, and partly in the 
town of Vernon ; and part of district No. 6, lying partly in the town 
of Westmoreland, and partly in the town of Kirkland. The comr 
missioners of common schools of the town of Kirkland should 
therefore have vmited in the order. The trustees of district No. 
6 swear that they never consented to a transfer of part of that 
district to No. 5. The order of the 14th March could, therefore;^ 
not have gone into effect ; and although the part of No. 6 added 
to No. 5 was wholly within the town of Westmoreland, it was, at 
the time district No. 21 was formed, part of joint district No. 6, 
which was jmrtly in the town of Kirkland ; and the commii?- 
sioners of the latter town must have united in the order form- 
ing that district, to give it validity. If the order of the 14th 
of March, setting off to No. 5 the part of No. 6 which was 
subsequently added to No. 21, had gone into effect, the forma- 
tion of the latter -would have been valid without the concurrence 
of the commissianers of Kirkland. But with what propriety 
can this be assumetl, when the trustees of No. 6 swear that they 
never consented to the transfer of a part of that district to No. 5, 
and when the order of the 22d March, issued by the commis- 
sioners of Yfestmoreland and Vernon, sets forth, that part of 
the former is taken to fonn the new district? The two tiustees 
of district No. 6, who swear that they never consented to a trans- 
fer of part of that district to No. 5, state in an affidavit appended 
to the papers of the respondent, that they gave " their consent 
to have that part of district No. 6, lying on the Seneca turnpike 
?oad, set off from said district, foi- the purpose of forming a new 
district arid such otbere as the commissioners should think pro- 
per." No such consent is annexed, as it should have been, either 
to the order of the commissioners dividing district No. 6, or their 
order forming district No. 21. Besides, if such consent was giv- 
en to the extent above stated, it was wholly uajustifiable on the 
part of the trustees. They are the immediate guardians of the 
interests of their district ; they are presumed to understand its 
wants ; and it is a misuse of the authority confided to them, to 
give a sweeping consent to any alterations in their district, which 
the commissioners may choose to make. The law has given 
them power to prevent alterations from going into effect for three 
months, by declining to give their consent to them ; and the de- 
sign was, to enable the trustees to protect themselves and the in- 



SUPERINTENDENT OF COMMON SCHOOLS. 323 

«,crests of iheir district. But by consenting beforehand to such 
alterations as the conunissioners n»ay think proper, tlie trustees, 
if such consent is vahd, disartn tlieniselves, and put it out of 
of their power to object at a subsecjuent time, to alterations which 
they may not approve. The consent of trustees should only be 
ijiven to specific alterations; and if their conseiit is obtained in 
advance, tbe precise alteiation to which it is intended to be given 
should be fully and explicitly stated. 

In addition to these objections, the order of the 22d March, 
ibrming district No. 21, includes as part of it, two persons, Messrs. 
Roberts and Osgood, belonging to district No. 2 in Westmore- 
land ; and it does not appear by the record that the consent of 
the trustees of that district to tbe alteration was obtained, or that 
any notice of it was served on them. Indeed, district No. 2 is 
not named in the order, nor does it appear that any part of it is 
included in the new district, except by referring to Calvin Os- 
good's east line as one of the boundaries of No. 21. The order 
is. therefore, on its face both defective and contradictory, in 
setting forth that the new di^rict is to be formed ^' partly out 
of district No. 5 and partly out of district No. 6." while it ac- 
tually includes by name one individual belonging to No. 2, with- 
out mentioning the latter district at all. It is incidentally men- 
tioned in a parenthesis in an affidavit made by the commission- 
ers of common schools of the town of Westmoreland, that the 
transfer of Messrs. Roberts and Osgood was with the consent of 
the trustees of No. 2 ; but imder any circumstances, it is con- 
ceived that the fact should have been explicitly averred, if it was 
impossible to produce the written consent. 

The Superintendent is aware that the formation of a new dis- 
trict from part of No. 6 had been for some time under discussion 
and that the propriety of the measure had been conceded by the 
trustees and a majority of the inhabitants of the district; but the 
commissioners, in adopting an indirect course of proceeding, 
should have taken care to keep within the limits of their authority. 
Such is the condition of the records, now, that the Sujjerintendent 
cannot declare their proceedings to be valid, without assuming 
that the consent of the trustees of di^rict No. 6 was actually given 
to the alteration made by the order of the i4th of March, though 
their affidavit shows the contrary ; that the two new districts 
were actually created on the 14th March, when the orders form- 
ing them are dated the 22d of that month : and that the per- 
sons on the Seneca turnpike road, set off to district No. 21, 
were not, at the time they were so set, inhabitants of district No. 
6, though the order of the 22d March shows them to be so. — 
Much as the Superintendent is disposed to sustain the proceed- 
ings of officers engaged in the administration of the common 



324 CASES DECIDED BY THE 

school system, he cannot go so far as to give jurisdiction, by 
such a train of assumptions, where none appears by the records 
to iiave been possessed. 

But there are other considerations which it may be proper to 
advert to, with reference to the jxjssible future action of the com- 
missioners in respect to these districts. District No. 5 lias, in 
the opinion of the Superintendent, been unjustly reduced in 
strength. By the statement of the respondent, it appears thai 
the district on the 31st December, 1835, had 57 children, be- 
tween 5 and 16 years of age, and that the number was by the 
division made to form district No. 21, reduced to 46. But there 
are included in this statement nine children who were setoff to 
district No. 22, and the children of the appellant, who was 
left in such a condition that it did not appear satisfactorily to 
which district he belonged. On the other hand the statement 
of the appellant shows, that the number of children between 5 
and 16 years of age, now residing in the district, is but 18, in 
addition to his own. The Superintendent is, therefore, left to 
infer, that between the 31st December, 1835, and the time when 
the appeal v.'as made, the number of children in district No. 5 
has been reduced to the extent set forth by the appellant. But 
admitting the number of children given by the respondent to 
have been the true number in the district, at the time the several 
dismemberments to which it was subjected were made, the dis- 
trict was, in this respect, reduced he\ow the average strength of 
the other districts in the state, and as the result has proved, a 
considerable portion of the population lefl, was not of such a 
fixed character as to enable it to maintain itself. 

The formation of district No. 22 was not illegal. It was crea- 
ted by the commissioners of common schools of the towns of 
Westmoreland and Vernon, and taken from districts lying whol- 
ly within those towns : but as the formation of that district was 
a part of the transactions under review, and as the propriety of 
its organization as a separate district may be, in some respects, 
affected by the future disposition to be made of district No. 5, the 
Superintendent does not deem it expedient to make any distinc- 
tion between this part of the proceedings and that which relates 
to district No. 21 ; especially as no school-house has been built in 
district No. 22, and there are no equitable rights to be impaired. 

The Superintendent regrets that a school-house has been built 
in district No. 21, and that it will, in case that district was illegal- 
ly formed; be left on the hands of those who have constructed it: 
but if he had power to declare proceedings without authority to 
be valid, there are considerations which might render the pro- 
priety of his interposition for the protection of the trustees of dis- 
trict No. 21 at least doubtful. The respondent, Charles Povterj 



SUPERINTENDENT OF COMMON SCHOOLS. 325 

is a trustee of tlie new district, as lie was of No. 6, before the 
latter was divided, and it was principally through his inliuence 
and exertions that, the new district was formed. He states in his 
affidavit, that the appellant, soon after his return from Albany, 
in the spring of 1836, informed him that he consideied the pro- 
•ieedings of the commissioners illegal, and that he should " appeal 
to the Superintendent as soon as he could get time, and rip it all 
up." The respondent should have taken warning from tliis de- 
claration, and have ascertained at least, that the proceedings 
were not deficient in that ground work of authority without 
which the Superintendent would have no power to sustain thenj. 
The utmost that can be done by him, is to authorize the com- 
missioners to reassemble, and do what justice may seem to them 
to demand. 

It is accordingly ordered, that the proceedings of the commis- 
sioners of common schools of the towns of Westmoreland, Ver- 
non and Kirkland, in setting off part of school district No, 6 to 
school district No. 5 as aforesaid, on the I4th of March last, and 
the proceedings of the commissioners of the two former towns, 
in forming school district No. 22, on the 22d of the same month, 
be and they are hereby set aside ; and it is hereby declared, that, 
the proceedings of the commissioners of the two former towns, 
in forming school district No. 21, on the 22d of the same month, 
are void and of no effect: and the commissioners of the said 
three towns are hereby authorized, notwithstanding this deci- 
sion, to make such reorganizations of districts No. 5 and 6 as they 
may think proper and just, subject to an appeal to the Superin- 
tendent by any person conceiving himself aggrieved. 

The Inspectors of Co^mmon Schools of the town of 
Oysterbay, ex parte. 

Trustees are not the judges of the qualifications required for teachers in their 

school districts. 
Inspectors should aim to elevate the standard of education by a rigid examination 

of teachers. 

This was an appHcation by the inspectors of common schools 
of the town of Oysterbay, for the opinion of the Superintendent 
as to their duty in cases in which teachers not properly qualified 
were presented to them by the trustees of school districts with a 
request that the necessary certificates might be given, and with 
the assurance on the part of the trustees that they and the in- 
habitants were entirely satisfied with the teacher's qualifications. 

By John A. Dix, February 11, 1837. Neither the trus- 
tees nor the inhabitants of school districts are the judges of 
the qualifications of teachers. The law has confided the power 



326 CASKS DECIDED BY THE 

of examining" teachers to the^ inspectors, and the object was to 
secure the employment of competent persons. If the trustees or 
inhabitants are to determine what their districts require, and in- 
spectors are to be governed by their opinions and wishes, the of- 
fice of inspector mig-bt as well be abolished. With such a prac- 
tice, it is clear that the inspectors could have no influence in ele- 
\^ating the standard of education. A qualified teacher need only 
be employed three months, and it is no hardship to require a 
good one. In my annual report to the legislature for the year 
1835, I made the following remarks, which I commend to your 
consideration : 

" One of the most responsible and delicate trusts to be executed 
under the common school system, is that of inspecting teachers^ 
and pronouncing upon their qualifications. This duty is -con- 
fided to three inspectors, who are elected in each town annually^ 
or by the three commissioners of common schools, who are also- 
elected annually in each town, and who are, by virtue of their 
office, authoiized to examine the schools and teachers, and give 
the latter certificates of qualification. If the inspection of teach- 
ers is negligently conducted, or with a wiUingness to overlook 
deficienjcies instead of insisting ligidly on the requirements of the 
law, it s manifest that men without the necessary moral charac- 
ter, learning or ability, will gain a foothold in the common 
schools, and present a serious obstacle to the improvements of 
which they are susceptible. This would be an evil of the great- 
est magnitude, and there is no remedy for it but a strict inspec- 
tion of the candidates. It has been the practice in some instan- 
ces, for inspector to have a reference to the particular circum- 
stances of the case in giving a certificate. Thus, they have 
sometimes given an individual a certificate, with a view to a 
summer school, in which the children taught are usually smaller 
and require less of the teacher, when the certificate would have 
been withheld, if it was asked with a view to qualify the teacher 
for a winter school. But it is obvious that such a distinction is* 
wholly inadmissible. A certificate must be unconditional by the 
terms of the law : The inspectors must be satisfied with the qua- 
lifications of the teacher, "in respect to moral character, learning 
and ability :" And the certificate, when once given, is an abso- 
lute warrant for the individual to teach for a year, and to receive 
the public money, unless revoked before the expiration of the 
year, in which case it ceases to be operative fiom the date of its 
revocation. The standard of qualification for teachers, so far as 
granting certificates is concerned, is of necessity arbitrary. The 
law does not prescribe the degree of learning or ability which a 
teacher shall possess, but virtually refers the decision of this im- 
portant matter to the inspectors. 



SUPERINTENDENT OF COMMON SCHOOLS. 327 

" By employing a qualified teacher tinee months in each year, 
every district is entitled to a distributive share of the common 
school fund, and its proportion of the common school tax paid 
by the town; and there are few instances in which the amount 
of the contribution from these sources will not suffice to pay him 
one half of the wliole amount of his compensation for the pre- 
scribed period. During the remaining nine months, the districts 
are at liberty to employ such teachers as they may think proper. 
All the law exacts is, that during one-fourth part of the year, 
each district which participates in the bounty of the state, shall 
have a teacher with whose qualifications the inspectors of the 
town are satisfied. The requisition is by no means onerous, and 
as the inspectors have not, neither should they possess, the power 
of relaxing the rule with reference to the circumstances of any 
particular case, by departing from the standard of qualification 
which they assume as their guide in others." 

A, B., a trustee of school district No. 1 in the town 
of Northeast, ex parte. 

All the tru3tee3 of a district should be present in assessing a tax; but if a tax is 
assessed by two, without consulting the third, the collector will be protected 
in executing the warrant 

If the annual report of a school district is signed by two trustees, the commis- 
sioners can look no further, and the district must receive its share of the pub- 
lic money if the report is otherwise sufficient. 

The following question was submitted for the opinion of the 
Superintendent by one of the trustees of school district No. 1 in 
the town of Northeast : 

" Are the proceedings of two trustees legal, when the third is 
not notified or consulted, in assessing a tax and making an an- 
nual report?" 

By John A. Dix, February 16, 1837. All the trtistees of a 
district should be present in assessing a tax. Sec. 27, page 555, 
2 R- S. provides that " whenever any power, authority or duty 
is confided by law to three or more persons, and whenever three 
or more persons or officers are authorized or required by law to 
perform any act, such act may be done, and such power, au- 
thority or duty may be exercised and performed by a majority of 
such persons or officers, upon a meeting of all the persons or of- 
ficers so entrusted or empowered, unless special provision is other- 
wise made." The rule established by this section is applicable 
to officers concerned in the administration of the common school 
system, excepting where a different provision is made ; and in 
relation to the assessment of taxes by trustees of school districts, 
no such provision exists. At the same time, if a tax is assessed 
by two trustees, and it is collected, the collector will be protected, 



328 CASES DECIDED BY THE 

even if he should enforce the collection by taking property and 
selling it. If the warrant annexed to a rate bill or tax hst is 
under the hands and seals of a majority of the trastees (sec. 88, 
page 484, 1 R. S.) it is sufficient for the protection of the collec- 
tor ; though in an action of trespass against the trustees, brought 
by a person whose property had been taken and sold, he might 
perhaps be allowed to show that two of the trustees only united 
in the assessment.* 

The preparation of an annual report of a school district is a 
matter in which all the trustees ought also to unite. But I do 
not perceive how any advantage could be taken of them if only 
two were present. 13y a special provision of the act relating to 
common schools, a report signed and certified by a majority of 
the trustees is sufficient, (sec. 92, page 484, 1 R. S.) If this 
provision is complied with, and the report is in other respects suf- 
ficient, the commissioners can look no further and the district must 
be allowed its share of the public money. The commissioners 
would clearly in such a case act in strict accordance with the re- 
quirements of the law ; and if a portion of the public money 
were awarded to a district in which a report was made out by 
two trustees only, without any consultation with the third, the 
defect could not, it appears to me, be made the ground work of 
any judicial proceeding against the trustees by which such report 
was rendered. 

(anonymous.) 

A teacher's certitficate cannot be dated back. 

By John A. Dix, February 18, 1837. A certificate of quali- 
fication for a teacher cannot be dated back. It must bear date 
on the day of the examination. It will not otherwise conform 
to truth. 

The Trustees of school district No. 4 in the town of 
Butternuts, ex parte. 

Trustees of school districts have ceitain corporate powers conferred on them by 
the statute; but their jurisdiction is special and limited, and in the exercise of 
their powers they must confine themselves strictly to the directions of the sta- 
tute. 

Trustees cannot purchase promissory notes given by a teacher to third persons 
and set them off in payment of his wages. 

This was an application from the trustees of school district 
No. 4 in the town of Butternuts, for the opinion of the Superin- 

* According to the principle of the decision of the supreme court in the case 
of McCoy vs. Curtice, 9 Wendell, 19, the presence of the third trustee would 
be presumed until the contrary was shown. 



SUPERINTENDENT OF COMMON SCHOOLS. 329 

tendent as to their right to purchase promissory notes given by 
a teacher to certain inliabitants of the district, to whom he was 
indebted, for the purpose of setting off such notes on a contract 
with said trustees, in payment of the wages due him for teaching. 

By John A. Dix, February 24, 1837. The question sub- 
mitted to me in this case is, whether the trustees of a school dis- 
trict may purcliase and hold a promissory note given by a teacher 
to a third person, and set off such note on their contract with the 
teacher in payment of his wages? 

If trustees may purchase and hold such a note in their official 
character, then it would seem to follow that they may transmit 
it, as the property of tlie district, to their successors in office; and 
that they, or their successors, may either set it off on a contract 
with the maker or maintain an action on it against him for the 
amount due: for if it is a legal demand in their hands, the 
right of enforcing the payment of it against the party from 
whom it is due would be necessarily implied. 

The question to be determined, therefore, is, whether trustees 
may purchase and hold a promissory note in their official cha- 
racter; and the settlement of this question involves a general in- 
quiry into the nature and extent of their powers. 

The revised statute relating to the common schools confers on 
the trustees of school districts certain specified powers. They 
are authorized to perform various acts concerning the school dis- 
tricts for which they are appointed ; but they have never been 
considered as possessing any of the attributes of corporations, ex- 
cepting such as the statute may have conferred on them in ex- 
press terms. The right to purchase, hold and convey real and 
personal estate is one of the general powers of a corporation ; and 
it is only by force of various successive enactments that this power 
has been conferred, in special cases, on the trustees of school dis- 
tricts. Thus, the Revised Statutes, vol. 1, sec. 97, page 485, pro- 
vide that "all property now vested in the trustees of any school 
district, for the use of schools in the district, or which may be 
hereafter transferred to such trustees for that purpose, shall be 
held by them as a corporation." By force of this provision any 
property which may become vested in one set of trustees for the 
use of their district, passes, at the expiration of their term of of- 
fice, to their successors ; and either may doubtless bring an ac- 
tion for the purpose of maintaining the quiet and peaceable pos- 
session and enjoyment of such property; for in the power to hold 
property that of defending it against unlawful interference is ne- 
cessarily implied.* But so far they are only authorized to hold 
as a corporation property vested in, or to be transferred to, them ; 

* Sec a case reported at page 188, 



330 CASES DECIDED BY THE 

and there is no other provision in the statute declaring them in 
express terms to possess corporate powers. A declaration that 
they shall be a corporation for one purpose would seem to pre- 
clude the idea that the statute designed to make them so forany 
other purpose: and if, in other cases, corporate powers are spe- 
cially conferred, they are to be regarded as exceptions to the ge- 
neral design of the law. 

By 1 R. S. sub. 5, sec. 75, page 481, trustees of school dis- 
tricts are authorized to "purchase or lease a site for the district 
school-house, as designated by a meeting of the district, and to 
build, hire or purchase, keep in repair and furnish such school- 
house with necessary fuel and appendages, out of the funds col- 
lected and paid to them for such purposes." 

The 4th section of the act of February 17, 1831, concerning 
district school-houses, authorizes the inhabitants of any school 
district in which the site of the school-house shall have been 
changed as provided by the preceding sections, to direct the sale 
of the former lot and the buildings thereon ; and a deed execut- 
ed by the trustees in pursuance of such direction is declared valid 
and effectual to pass all the estate or interest of such district in 
the premises intended to be granted thereby. By the act of 11th 
May, 1835, the trustees of a school district are authorized, when- 
ever the site of the school-house is lawfully changed, to sell and 
convey the former site, &c. These acts are designed to enable 
school districts to divest themselves of the title to their real estate, 
under certain circumstances, it having been uniformly held by 
the Superintendent that there was no competent authority exist- 
ing within them to alien and convey such property in any case. 
Thus, by a train of successive enactments, the trustees of school 
districts have been authorized to exercise one of the general 
powers of corporate bodies ; to hold, purchase and convey real 
estate, and this only in special cases. 

In relation to the management of other moneyed transactions 
confided to trustees of school districts the statute is equally pre- 
cise in its provisions. The moneys which may lawfully come 
into their hands for the use of their districts are those which are 
raised by tax upon the propert)^ of the districts, and imposed by 
vote of the inhabitants for certain objects enumerated in the sta- 
tute, and those which are received from the commissioners of 
common schools or collected from the persons liable therefor, for 
the payment of teachers' wages. If the moneys apportioned to 
a district are not paid over to the trustees, they are authorized, 
by sec. 90, page 484, 1 R. S. to bring a suit for the recovery of 
the same, with interest, against the commissioner in whose 
hands they shall be. If the sums for which the inhabitants of 
the district are liable for tuition are not paid to the teacher, the 



SUPERINTENDENT OF COMMON SCHOOLS. 331 

trustees are authorized, by sub. 13, sec. 75, page 482, 1 R. S. to 
make out a rate bill containing the name of each person so lia- 
ble, and the amount for which he is so liable, <fcc. and to annex 
thereto a warrant for the collection thereof. Whenever a tax is 
voted, the trustees are required to make out a tax list containing 
the names of all the taxable inhabitants, <fcc. and to annex to it a 
warrant for its collection. If the sum payable by any person is 
not collected within a certain time, the trustees may renew the 
warrant as to such delinquent; or if he is a non-resident of the 
district at the time of making out the tax list or rate bill, or at 
the expiration of the warrant, and no goods or chattels can be 
found therein whereon to levy the same, the trustees may prose- 
cute for the amount due in their name of office. 

For the purpose of accomplishing the objects in view of these 
several provisions, the statute has conferred on trustees of school 
di.stricts ample powers; and if those officers transcend the just 
bounds of their authority, thej^ will have no right to complain 
if they lose the legal protection which would otherwise be ac- 
corded to them in the performance of their duties. 

The power of bringing suits has also been conferred on them 
in cases other than those above enumerated, and in almost every 
instance authority is specially given to sue "in their name of 
office." 

In a case which was decided in Massachusetts, 13 Mass. Rep. 
193, it was held that the inhabitants of a school district had suf- 
ficient corporate powers to maintain an action on a contract to 
build a school-house, and to make a lease of land to them. 
The court said that school districts were to be considered " as 
qua corporations, with limited powers, co-extensive with the du- 
ties imposed upon them by statute or usage, but restrained from 
a general use of the authority which belongs to those metaphy- 
sical peisons at common law. The same may be said of all the 
numerous corporations which have been from time to time cre- 
ated by various acts of the legislature, all of them enjoying the 
power which is expressly bestowed upon them, and perhaps in 
all instances where the act is silent, possessing by necessary im- 
plication the authority which is requisite to execute the purposes 
of their creation." 

The laws of Massachusetts, under which this decision was 
made, relating to the division of towns into school districts, and 
conferring certain powers on the inhabitants, were extremely 
general in their provisions, and the decision was not pronounced 
until the court had for some time held the case under advise- 
ment, and several times consulted in relation to it, in conse- 
quence of doubts which some of them entertained. The Re- 
vised Statutes of Massachusetts, sec. 57, page 225, provide that 



332 CASES DECIDED BY THE 

"every school district shall be a body corporate, so far as to pro- 
secute and defend in all actions relating to the property of the 
district ;" thus removing all the doubt which existed as to the 
extent of the powers of school districts under pre-existing laws 
in respect to maintaining actions at law. 

The principles settled by the case in Massachusetts are per- 
haps in no degree inconsistent with the conclusion to which the 
foregoing arguments tend, with respect to school districts in 
this state. In Massachusetts many of the essential powers of 
school districts were necessarily derived by implication, from a 
consideration of the purposes for which they were created. In 
this state, oa the other hand, the statute has undertaken to spe- 
cify with precision the powers to be exercised by the persons 
charged with administering the common school system and con- 
tinuing it in existence. Although the rule of construction adopt- 
ed by the court in Massachusetts may be equally true in both 
cases, the necessity of resorting to it in order to justify the exer- 
cise of implied powers, can rarely occur in this state, for there 
is scarcely any object which the statute has not provided the 
means of accomplishing. The jurisdiction of the officers en- 
gaged in the management of the affairs of school districts is spe- 
cial and limited ; and in the exercise of their powers they must 
confine themselves strictly to the directions of the statute, al- 
though the question may sometimes arise whether the exercise 
of a power not expressly granted by law is not indispensable to 
the accomplishment of some authorized object. 

There is no provision in the statute by which trustees of school 
districts may purchase or receive promissory notes. They can- 
not lawfully purchase them, for the moneys which come into 
their hands are appropriated to specific objects, and they have 
no right to use those moneys, even temporarily, for any other 
purpose. They cannot receive and hold promissory notes for 
moneys due the district, for the law requires them to collect in 
specified modes the legal demands of their districts against indi- 
viduals. To take a due bill or note of hand from an individual 
for money due to the district, is not only an unauthorized, but an 
unnecessary, step, and trustees can have no possible justification 
in thus transcending their powers. They have other means of 
enforcing the legal rights of the district, and they should not 
resort to practices for which the law furnishes no authority. The 
wages of teachers must be paid in the mode presciibed by law. 
If trustees purchase demands against them, it is in their indi- 
vidual capacity, and those demands Avill not be allowed to enter 
into their official transactions, or to be setoff" against the de- 
mands of the teacher upon the district. Such a right is essen- 
tial to no object for which school districts were created, and if 



SUPERINTENDENT OP COMMON SCHOOLS. 383 

the power of trafficking in personal securities existed, I should 
apprehend that serious inconveniences and abuse would grow 
out of it. 

In the case of Brewster vs. Colwell and others, 13 Wendell, 
28, the supreme court of this state decided that the trustees of a 
school district might receive for money due to them the note of a 
third person. This was a case, however, in which a contract had 
been made by the trustees for fuel, and in which they were al- 
lowed to set off in a suit brought by the person who had fur- 
nished it, a due bill given by him to a third person, and trans- 
ferred to them. From the opinion expressed by the court in 
the cases of Hubbard vs. Randall and others, 1 Cowen, 262, 
note, and Silver vs. Cummings and others, 7 Wendell, 181, 
it would seem that trustees are personally liable on such con- 
tracts, and cannot bind their successors in office. In both the 
cases last referred to, the opinion of the court had reference to 
contracts for building school-houses ; but the reasoning of the 
court in the case of Silver vs. Cummings, is equally applicable 
to contracts for fuel. Between such contracts, and those which 
are made with teachers for the payment of their wages, a dis- 
tinction was taken, for reasons which were fully assigned ; and 
the court decided that with respect to the latter, successors were 
liable under contracts made by their piedecessors in office. The 
decision of the court in the case of Brewster vs. Colwell and 
others, does not, therefore, necessarily conflict with the con- 
struction which I have given to the statute ; for if the trustees 
in that case were personally liable on their contract with Brew- 
ster, the due bill may have been regarded as having been pur- 
chased and held by them as individuals. If this supposition be 
true, it was not set off by them in their official character, but as 
a personal demand in extinguishment of an individual liability. 
The opinion of the court in this case was very brief, and was 
accompanied with no exposition of the grounds on which it was 
founded ; but from the tenor of its decisions in other cases in re- 
spect to the powers of school district officers, I entertain no doubt 
as to the principle on which the case was decided. 

Jeremiah Coons, a trustee of school district No. 18 in 
the town of Broome, against the inhabitants of 
said district. 

If a tax is voted for a particular object, and the trustees expend a greater amount, 
they are without remedy if the inhabitants refuse to vote an additional sum to 
reimburse them. 

The facts of the case are stated in the Superintendent's deci- 
sion. 



334 CASES DECIDED BY THE 

By John A. Dix, February 28, 1837. This is an appeal 
by Jeremiah Coons, a trustee of school district No. 18 in the 
town of Broome, from a decision of the inhabitants of said dis- 
trict at a special meeting called for the purpose of raising money 
to pay for repairing the school-house and for other work in put- 
ting up a stove. The sum claimed by said trustee to be equita- 
bly due from the district to him is .<^2.20, which the inhabitants 
refused to raise by tax. It appears that a tax of $11 was voted, 
and has been collected, to buy a stove, and that the trustees ex- 
pended in addition to that amount g5.20 for stove pipe and 
work. The sum of ^3 has been raised by subscription, leav- 
ing the above mentioned balance of S2.20. 

The Superintendent of Common Schools cannot interfere in 
this case. If the inhabitants of the district had directed the 
trustees to purchase and put up a stove, without specifying the 
amount to be expended, or voting any tax for the purpose, he 
would authorize the sums reasonably exjjended by them in exe- 
cuting that direction, to be raised on the taxable property of the 
district, in case of a refusal on the part of the inhabitants to 
provide for a reimbursement of their expenditures. But as the 
inhabitants, by voting a tax of $11, have in effect limited 
the amount of the expenditure in contemplation to that sum, the 
trustees were wholly unauthorized to go beyond it, and they 
must abide the consequences. The district may at any time 
vote to be raised by tax the additional sum required ; but if they 
refuse, the trustees having acted without authority, have no re- 
medy. 

It is accordingly ordered, that the appeal of Jeremiah Coons 
be, and it is hereby dismissed. 

The Inspectors of Common Schools of the town of 
Edmeston, ex parte. 

Inspectors of common schools may give notice that they will meet at certain timea 
and places for the inspection of teachers ; but this does not exonerate them 
from the duty of meeting at intermediate timos when there attendance is re- 
quired. 

This was an application for the direction of the Superinten- 
dent by the inspectors of common schools of the town of Ed- 
meston, as to their duty with respect to meeting for the exami- 
nation of teachers. 

By John A. Dix, March A. 1837. There is no established 
rule as to the time when inspectors of common schools are to 
examine teachers. The inspectors may give a general notice 
that they will be present at a certain place on a certain day, 
and will then and there exajnine all such persons as may pre- 



SUPERINTENDENT OF COMMON SCHOOLS. 335 

sent themselves as candidates for teaching common schools. 
But this will not exonerate them from the obligation of attend- 
ing at other times and places, in case of urgent necessity, on 
application to them from the trustees of a school district or a 
teacher. They may, if they choose, give public notice (hat they 
will meet at some central place in the town, say, on the first 
Monday in January and July, and examine all persons, who 
intend to be candidates for teaching ; and in case of applications 
requiring an earlier action, they may meet on the first Monday 
of the intermediate months of April and October. 1 suggest 
this as a convenient arrangement, and one which the inspectors 
may with propriety make. If such a usage were to become es- 
tablished in a town," so as to be a matter of general notoriety, 
the cases vvouUl be extremely rare which would not be disposed 
of at the four stated meetings of the inspectors. 

The Trustees of school district No. in the town 

of Willsborough, ex parte. 

Collectors of school districts may, in certain cases, go beyond the boundaries 
of the districts, for which thry were appointed, to execute warrants for the 
collection of taxes and rate bills 

The following question was presented for the opinion of the 

Superintendent by (he trustees of school district No. in the 

town of Willsborough. 

The collector of our town has (axes to collect against A. B. 
and C. of other towns of said county. He is authorized (o go 
into said towns and levy and sell property in their possession to 
satisfy such taxes. Does not (he school act, by the amendment 
of April 21, 1831, give the same authority to collectors of school 
district ? 

By John A. Dix, March 6, 1837. The general rule ap- 
plicable to all officers is, that they cannot exercise jurisdiction be- 
yond the limi(s of the district or territory for which they are ap- 
pointed. The exceptions to the rule are cases in which the legis- 
lature, by special enactment, may have ex(ended the jurisdiction 
of particular ofliicers, or classes of officers, beyond those limi(s. 
The question presented by you is, whether the act of April 21, 
1831, extends to collectors of school districts, the right of going 
beyond the boimdaries of their districts for the purpose of execut- 
ing a warrant for the collection of a tax for erecting or repairing 
a school-house? This act provides that "the warrant annexed 
to any tax list for the collection of a district tax for erecting or 
repairing any school-house, shall command the collector, in case 
any person named in such list shall not pay the sum therein set 
opposite to his name on detTiand. to levy the same of his goods 



336 CASES DECIDED BY THE 

and chattels, in the same manner as on warrants issued by the 
board of supervisors to the collectors of towns." The act of April 
26, 1832, provides that all taxes directed to be raised by ihe act 
relating to common schools, (title 2, of chapter 15, of part first 
of the Revised Statutes,) shall be collected in the manner pre- 
scribed by the act of 1831 above quoted. Whether, therefore, 
a tax be voted to build or repair a school-house, purchase fuel, 
or for any other authorized object, the manner of collecting it is 
the same? The act of May 11, 1835, sec. 3, provides that 
"the warrant issued by the trustees of school districts for the 
collection of rate bills shall have the like force and effect as war- 
rants issued by the boards of supervisors to the collectors of taxes 
in towns; and the district collectors are hereby authorized to col- 
lect the amount due from any person or persons in their respec- 
tive districts, in the same manner that the collectors are autho- 
rized to collect town and county charges." 

The effect of these several amendments of the Revised Sta- 
tutes is to authorize collectors of school districts to execute war- 
rants for the collection of all taxes and rate bills, m the same 
manner as warrants issued by boards of supervisors to the col- 
lectois of towns. 

The first question which arises under these amendments, al- 
though it is not distinctly presented by you, is, whether a collec- 
tor of a school district must levy the amount due from any in- 
dividual by distress and sale of the goods and chattels of such 
individual, or whether he may take " any goods and chattels in 
his possession," as collectors of towns may do, under the provi- 
sions of sec. 2, page 397, 1 R. S. ? With regard to warrants issu- 
ed for the collection of rate bills, there can be no doubt, as the 
act of May 11, 1835, expressly declares, that they shall have 
the like force and effect as warrants issued by the board of su- 
pervisors, &c. The act of April 21, 1831, which, with the 
amendment of 1832. relates to warrants issued for the collection 
of taxes, authorizes collectors of school districts, in case any per- 
son named in their warrants refuses to pay the amount set oppo- 
site to his name, " to levy the same of his goods and chattels in 
the same manner as on warrants issued by boards of supervi- 
sors," (fee. At first glance, this provision would seem to restrict 
the collector in his levy, to the goods and chattels of the person 
named in the tax list, and not to authorize him to take " any 
goods or chattels" in the possession of such person. But b)' re- 
ferring to sub. 5, of sec. 37, page 396, 1 R. S. it will be perceived 
that the warrants issued by boards of supervisors merely autho- 
rize " the collector, in case any person named in the assessment 
roll shall refuse or neglect to pay his tax, to levy the same by 
distress and sale of the goods and chattels of such person." The 



SUPERINTENDENT OF COMMON 6CHOOLS. 337 

direction, therefore, wonld be the same in both cases. But under 
tlie provision of the act of April 21, 1831, which directs the levy 
to be made " in the same manner" as wai rants issued by boards 
of supervisors to town collectors, it is conceived that the autho- 
rity given to fhe latter to take " any goods and chattels in pos- 
session" of any person who ought to pay die lax, extends also to 
collectors of school districts. The article of which this provi- 
sion is a part, professes to treat " of the manner in which taxes 
are to be collected, and the duties of the collector ;" aiid from 
the similaiity of the language adopted in the two cases, it is fair 
to infer that the intention was to make the pravisions of this ar- 
ticle applicable to both.* 

The first question which arises under this constraction of the 
statute, as amended, being disposed of, we come now to the in- 
<juiry presented hy you, whether a collector of a school district 
<»n go beyond the boundaries of his district to execute a war- 
rant? 

Sec. 5, page 398, 1 R. S. provides that town collectors may 
levy and collect taxes in other wards or towns, in the sam« coun- 
ty, in two cases : 

1st. When any person assessed to pay a tax shall have remov- 
^5d after tlie assessment, and before the tax ought by law to have 
been collected, out of the town or ward in which such tax has 
been assessed : and, 

2d. When any person shall neglect or refuse to pay a tax as- 
sessed on any estate situated out of the ward or toAvn in which 
he shall reside, and within the county. 

The last case cannot occur in the assessment of taxes for 
school district purposes, as such taxes are to be apportioned '* on 
all the taxable inhabitants within the district, according to the 
valuations of the taxable property which shall be owned or pos- 
sessed by them, at the lime of making out the list witliin the 
district,^' or " partly m such district and partly in any adjoining 
district." No person, therefore, can be assessed for real proper- 
ty excepting in the district in which it is situated ; and if he re- 
sides in a different district, he is, in certain cases, by the provi- 
sions of sec. 77 and 78, page 482, 1 R. S. to be deemed a taxa- 
ble inhabitant of the district in which the property is situated. — 
Where school districts lie partly in two or more towns, the col- 
lector may levy on property in either town, and "even in a differ- 
ent county, if it be within his district. But this is within the 
general rule, and of course not susceptibl* of the application of 

• See the case of the trustees of school district No. 4 in the town of Butter- 
nuts, page 14o, and decision of supreme court, note, page 144. 

22 



33S CASES DECIDED BY THE 

the principles which govern either of the above mentioned excep- 
tions.* 

In the first case above stated, in which town collectors may 
levy and collect taxes out of their own towns and wards, and 
within the same county, it appears to me that the same autho- 
rity is conferred on collectors of school districts, by force of the 
amendments of the statute above recited. With regard to rate 
bills, if it be not so, the warrant would not have the like force 
and effect as warrants issued by boards of supervisors to town 
collectors. 

There is some difference in the phraseology of the acts of 1831 
and 1B35. The latter gives to warrants for the collection of rate 
bills " the like force and effect" as warrants issued by boards of 
supervisors. The former gives authority to cotleet of "any per- 
son named in" a tax list, in the same manner as on warrants 
issued by boards of supervisors; whereas, by the last clause of 
sec. 3, of the act of 1835, district collectors are authorized to col- 
lect " the amount due from any person or persons in their re- 
spective districts in the same manner" as town collectors. I do 
not consider these differences, in the language of the acts refer- 
red to, as intended to n)ake a distinction in the two classes of 
eases to which they relate. The object of the amendments was 
the same; to give a more extensive remedy in collecting moneys 
for common school put poses. The act of 1831 applied to taxes 
for erecting or repairing school-houses. The act of 1832^^ design- 
ed to place all other taxes in school districts on the same footing. 
But a doubt having arisen whether rate bills for teachers' wages 
were embraced by the act of 1832, the act of 1835 was passed 
for the purpose of removing it. 

After all, it will be peiceived that there is but a single class of 
cases, under this construction of the acts referred to, in which the 
collector of a school district can go beyond the boundaries of his 
district to enforce the collection of a tax; that is, where an inha- 
bitant is included in a tax list or rate bill, and removes out of the 
district, after the assessment and before the tax or tuition bill 

• In the opinion of the Superintendent, in the case of the trustees of school 
district No. 1 in the town of Conewango, page 7S, it would seem that collectors 
might go beyond the boundaries of their districts to execute warrants against the 
class of non-residents embraced in sectioBs 77 and 78, though not for the collec- 
tion of rate bills ; and by the decision of the supreme court, in the case of Ward 
vs. Aylesworth, 9 Wendell, 281, it was settled that a collector might, where a 
farm was partly within an adjoining district, go on to that part of it and take pro- 
perty to satisfy a tax, the whole farm being considered, for that purpose, with- 
in the district of the collector. In this case the court held, that the collector 
was limited in his functions to the bounds of his district. But the case occurred 
and was tried before the amendments of 1831 an<i 1832 to the school act, with 
regard to the ccdlection of taxes, were in force. 



SUPERINTENDENT OF COMMON SCHOOLS. 339 

owght by law to have been collected. Whether the warrant be is- 
sued for the collection of a tax list or rate bill, is of no consequence. 
If, after the tax list or rate bill is made out, a |)erson removes in- 
to another town in the same county, the collector may follow 
him and levy the amount due on any goods or chattels in his 
possession. 

There are other cases in whicli a collector cannot go out of 
his district to collect a rate bill : 

1st. Where a person, liable to be included in a rate bill, re- 
moves from the district before it is made out; and 

2. Where a person, liable to be included in such rate bill, has 
not removed from the district after the rate bill is made out, and 
does not reside therein at the expiration of the warrant, and no 
goods or chattels can be found in the district whereon a levy can 
be made. 

Neither of these cases comes within the scope of the amend- 
ntents to the Revised Statutes, prescribing the duties of col- 
lectors, whatever may have been the intention of the framers 
of those amendments; for in neither case is there a removal 
after making out the rate bill, and before it ought by law to 
have been collected ; nor is there in either an assessment of pro- 
perty situated out of the town or ward in which the owner re- 
sides, rate bills not being made out with any regard to taxable 
property, but according to the number of children sent to school, 
and the period of attendance. 

In these cases, therefore, the only remedy is that provided by 
section 89, page 484, 1 R. S. which authorizes trustees of school 
districts to sue for and recover the amount due in their name of 
office. 

The Trustees of school district No. 5 in the town of 
Oswegatchie, ex parte. 

If the commissioners of common schools certify that a larger sum than $40U is 
necessary to build a school-house, the excess cannot be raised Ly tax without 
a vote of the district. 

If, after §400 has been expended in erecting a school-house, and an additional 
sum has been raised on the certificate of the commissioners, a further sum bi 
required, such further sum may be voted, if certified by the commissioneis to 
be necessary. 

In February, 1836, a tax of $400 was voted in school district 
No. 5 in the town of Oswegatchie, to build a school-house. The 
whole amount was raised and expended, and was found insuffi- 
cient to finish the house. An application was then made to the 
commissioners of common schools for a certificate, stating that 
in their opinion a larger sum was necessary. The commission- 
ers gave a certificate that $200 more was necessary, which sum 



340 CASES DECIDED BY THE 

was also raised and expended. A further sum being required, 
another application was made to the commissioners, who ex- 
pressed a wilHngness to give tlie required certificate, but doubted 
their authority to certify a second time. In the mean time the 
trustees had gone on by a vote of the inhabitants, given after six 
hundred dollars had been expended, and finished the house, 
having borrowed money on their own responsibility for the pur- 



Under these circumstances an application was made to the 
Superintendent for his opinion as to the right of the commission- 
ers to certify a further sum, and as to the right of trustees to 
levy such additional sum without a vote of the district. 

By John A. Dix, March A, 1837. Section 64, page 479, 
1 R. S. which forbids a greater sum than $400 to be voted for 
building a school-house, unless the commissioners of common 
schools of the town certify in writing that a larger sum ought 
to be raised, does not, in my opinion, authorize such additional 
sum to be raised without a vote of the district. Though the 
latter part of the section may at first glance seem to be impe- 
rative as to raising "a sum not exceeding the sum" specified by 
the commissioners, yet when taken in connection with the 
first part of the section, I think the manifest intention w'as, that 
the additional sum should be voted by the district, and that the 
certificate of the commissioners was designed only to enlarge the 
powers of the inhabitants as to voting a tax for building a school- 
nouse, and not to give the commissioners power, independently 
of the wishes of the district, to cause a larger sum than $400 to 
be levied on its taxable property. 

Under this view of the intention of the statute, I see no rea- 
son why the commissioners may not again certify that a larger 
sum than the amount already collected ought to be raised. On 
this certificate the inhabitants of the district may, at a special 
meeting, called for the purpose, vote the additional sum so speci- 
fied. If the trustees of the district have gone on, by the direction 
of the inhabitants who were convened for the purpose, and in- 
curred pecuniary responsibilities, they should be protected ; and 
in case the inhabitants refuse, on the certificate of the commis- 
sioners, to vote a sum sufficient to reimburse the trustees for the 
amount reasonably expended in pursuance of such direction, I 
should, on apphcation to me, take the measures necessary to save 
them harmless. 



SUPERINTENDENT OP COMMON SCHOOLS. 341 

Horace Gay and Hester L. Stevens, against the trus- 
tees of school district No. 3 in the town of Gates. 

If a man hxs been assessed on the last assessment roll of the town for a greater 
number of acres than his farm contains, he may claim a redtrction before the 
truster's of a school district, when a tax is assessed for common school pur- 
poses; but if he neglects to make such claim, he will not be relieved on an 
appeal to the Superintendent. 

This was a case in which the appellants complained that 
they had been unjustly taxed for 12, ^'^^ acres of land, the farm 
for which they were taxed being so much less than the quantity 
for which it was assessed in the last assessment roll of the town. 

By John A. Dix, March 14, 1837. The Superintendent of 
Common Schools having examined the case submitted by Ho- 
race Gay and Hester L. Stevens of the one part, and the trus- 
tees of school district No. 3 in the town of Gates on the other 
part, in the matter of the assessment of a tax by the latter, is of 
opinion that the sum of $4.01, which the appellants state to 
have been assessed on lot No. 167^ on account of 12 /^^V fierce of 
land more than the lot contained, cannot be remitted, inasmuch 
as the assessment was made agreeably to the last assessment roll 
of the town of Gates. A reduction of the tax on account of the 
excess of land assessed over and above the number of acres actu- 
ally contained in the lot, might have been claimed; but the 
Superintendent cannot interpose when the parties have ne- 
glected to resoit to the remedy provided by the statute. If the 
reduction had been claimed before the trustees, and they had re- 
fused to correct the error, the interposition of the Superintendent 
might with propriety have been asked. It is not alleged that the 
proper application was made to the trustees for a reduction of th« 
tax; and it is therefore presumed that no such claim was pre- 
ferred. 

The Trustees of school district No. in the town 

of Fallsburgh, ex parte. 

Trustees must include in a tax list every taxable inhabitant residing in the dis- 
trict at the time the list is made out. 

Trustees cannot assess an individual for personal property, if he has been taxed 
for none on the last assessment roll of the town, upon the supposition that h« 
may have more than his debts amount to. 

The following questions were presented for the opinion of the 
Superintendent by the trustees of a school district in the town of 
Fallsburgh. 

1. A. B. an inhabitant of our district has sold his farm to 
another inhabitant of the district, and intends going to the west 
early in the spring. He has money and obligations equal to the 



34Si CASES DECIDED BY THE 

amount for which he sold his farm. A tax is voted to build a 
school-house. What should the trustees do in relation to A. B.? 

2. The town assessors have assessed C. D. for his real estate, 
but not for any personal property. No addition to his property 
has since been made. Can the trustees of the district assess him 
for personal property upon the supposition that he may have 
more than his debts amount to? 

By John A. Dix, March 21, 1837. The trustees of a school 
district have no discretion to exercise as to the persons to be in- 
cluded in a tax list. They must include every taxable inhabi- 
tant residing in the district at the time the list is made out. If a 
man sells his farm after the assessment roll of the town is com- 
pleted, and remains in the district, he must be assessed for the 
price of the farm, if he is paid in money or securities for the pay- 
ment of money, deducting his debts, unless they have been al- 
ready deducted in the valuation of his taxable property on the 
town roll. In short, the trustees must give notice, and ascertain 
the true value of his property from the best evidence in their 
power, pursuant to sec. 80, page 483, 1 R. S. this being a case 
in which the valuation cannot be ascertained from the last ae- 
sessment roil of the town. 

The trustees of a district have no authority to assess an indi- 
vidual for more personal property than has been assessed to him 
on the assessment roll of the town, upon the supposition that 
he may have personal property exceeding the amount of his 
debts. The assessment roll of the town settles the matter, and 
the trustees cannot vary the amount, but from some knowledge 
of an alteration after that roll was made out, or to correct some 
known and acknowledged error. 

The Trustees of school district No. 5 in the town of 
Rodman, ex parte. 

If before a tax is assessed the trustees ascertain that the whole amount Toted 
will not be required, they may make out a tax list for a smaller sum. 

In this case a tax of $180 was voted to build a school-house, 
and the dimensions of the building were agreed on. The trus- 
tees immediately entered into a contract with a builder, who 
agreed to construct the house for $160. The question present- 
ed was, whether they could make out a tax list for $160, the 
amount of the contract, instead of $180, the amount voted? 

By John A. Dix, April 5, 1837. Under a vote to raise $180 
you may raise a smaller sum, if you find the whole is not re- 
quired to accomplish the object of the inhabitants in voting k. 
No one can be injured by such a proceeding. 



SUPERINTENDENT OF COMMON SCHOOLS, 343 

The Inhabitants of joint school district No. 12 in the 
towns of Stockbridge and Vernon, against the 
Commissioners of Common Schools of the latter 
town. 

If within thirty days after proceedings complained of, notice of appeal is served 
and the papers transmitted to the Superintendent, it is a sufficient compliance 
with the regulation, and ten days will be allowed to the respondents to answer, 
after the service of such notice. 

Lf there are Indian lands within the limits of a town, those lands may be included 
within the boundaries of school districts. 

If there are, within the boundaries of a school district, Indian children whose 
education is provided for by special enactments, they must not be included in 
the annual reports of the district. 

The facts of this case are stated in the Superintendent's order. 

By John A. Dix, April 17, 1837. The Superintendent of 
i.Jomnion Schools lias had under consideration the appeal of cer- 
(ain inliabitants of joint scliool district No. 12 in the towns of 
Stockbridge and Vernon, from the proceedings of the commis- 
sioners of common schools of the latter town on the 23d of No- 
vember last, in setting olT from said district so much of it as was 
comprised within the boundaries of the last mentioned town and 
forming a new district, under the denomination of district No. 15. 

With respect to a preliminary objection to the hearing, raised 
by the respondents on account of delay in presenting the appeal, 
the Superintendent deems the regulations substantially complied 
with. In the application of these rules a liberal interpretation 
has always been given to their requirements. If the papers in 
support of an appeal are sent to the Superintendent within thirty 
days, and notice is served on the opposite party within the same 
time, it is sufficient; and ten days thereafter will be allowed to 
the respondent to answer. The proceedings complained of in 
this case were of the 23d of November, 1836. Copies of the ap- 
pellants' papers were served on the commissioners of common 
schools of the town of Vernon on the 20th December, twenty- 
seven days afterwards, and the original affidavits were sent to a 
member of assembly at Albany, to be presented to the Superin- 
tendent. In consequence of the absence of the member referred 
to, the papers were not received until some time afterwards; but 
as they were prepared and sent to the Superintendent, and no- 
tice of the appeal was given within thirty days, it is a sufficient 
compliance with the regulations. 

It appears that school district No. 12 was formed on the 23d 
of May, 1819, by the commissioners of common schools of the 
town of Vernon. In describing the boundaries of the district the 
commissioners commenced at the southwest corner of a patent 
granted to John Sargeant, jr. and ran the line southerly to the 



344 CASES DECIDED BY THE 

south line of the town, af Vernon ; thence northerly -on the west 
Une of the same patent to the northwest corner of the same; and 
thence northerly, parallel with the east line of the Indian lancfe, to 
the centre of the Oneida turnpike road; and thence westerly to 
the west line of the town of Vernon. In thus describing^ the 
boundaries of district No. 12,^ two sides of the district, (the southern 
and western,) are left untouched. But the design of the com- 
missioners is obvioiK, as these sides were bouaded by the town 
line, which w^as the limit of their jurisdiction. They intended, 
beyond all doubt, to form into a separate district, under the de- 
signation of No. 13, all that part o^f the town of Vernon lying 
between Sargeant^s patent on the east and the town line on the 
west, and betweea the town line on the south and the Oneida 
turnpike road on the north. Upon any other svs-pposition the or- 
der would be incomprehensible and absurd. 

It may be proper to observe in this place, that in an affidavit 
made by Messrs. Joseph Pixley, Silas Seeber and George Adams, 
it is alleged that "there is no road in the town of Vernon, and 
never has been one, known by the name of the Oneida turnpike : 
that the only turnpike withift three miles of the saicl patent of 
John Sargeant, jr. was the Peterborough turnpike." The Su- 
perintendent is somewhat surprised that this assertion has been 
so positively made; for although he has no doubt the persons 
making the affidavit intended to state the truth, he apprehends 
that they are wholly in error in this respect. The Oneida Turn- 
pike Road was established by that name, as will be seen by re- 
ference to an act passed the 31st March, 1801, before the towsi 
of Vernon was erected, and by an amendment of the charter in 
the year 1812, chapter 153 of the laws of that year, it appears 
that it still retained the name of the Oneida Turnpike Road^ 
and that the company were authorized to change the line of 
their route between the school-house in Peterborough and a spe- 
cified point in the town of Vernon. Subsequently to this time, 
until the formation of district No. 12,^ no act is found changing 
the name of the corporation, nor has the Superintendent been 
able to find any act establishing a turnpike road by the name of 
the Peterboroxjgh turnpike. 

If it was the intention of the commissior>ei-s to include within 
district No. 12 the territory comprehended by the lines above 
mentioned, the question arises, whether the Indian lands which 
compose a part of it could be lawfully embraced in the order of 
the commissioners as a part of that district? On the settlement 
of this question the right of the commissioners of common schools 
of the town of Vernon to form district No. 15 must necessarily 
depend, as by the erection of the town of Stockbridge, district 
No. 12 became a joint district, if its original formation was legal, 



SUPERINTENDENT OF COMMON SCHOOLS. 345 

and it could, in that case, be altered only wirh the assent and 
concurrence of the commissioners of the latter town. 

To determine this question, it will be necessary to enter into 
a brief examination of the legislation of this slate in relation to 
Indian lands, with a view to ascertain how far the legislature 
has claimed to exercise jurisdiction over them. 

By art. 37 of the constitution of this state, adopted in the 
year 1777, it was ordained, that no purchases or contracts for 
the sale of lands with the Indians within the limits of this state 
should be deemed valid, imless made under the authority and 
with the consent of the legislature. 

Although the avowed object of this provision was to maintain 
peac« and amity with the Indians, and to guard against discon- 
tents and animosities growing out of frauds practised upon them 
in procuring contracts for the sale of their lands, the effect ne- 
vertheless was, by declaring all such contracts (unless made un- 
der the authority and with the consent of the legislature) to be 
void, to assume with respect to the Indian tribes, a right to con- 
trol and regulate the alienation of their lands. 

By an act passed the 17th March, 1788, to punish infractions 
of the article of the constitution above referred to, it was enactetl 
that if any person should, without the authority and consent of 
the legislature, purchase any Indian lands within this state, or 
make contracts for the sale of such lands, he should, on convic- 
tion thereof, forfeit one hundred pounds, and be further punished 
by fine and imprisonment, in the discretion of the court. 

It was also provided by the same act, that any person selling, 
intruding, or entering upon any such lands, by virtue of such 
contract or sale, should be subject to the like penalties. 

By an act passed the 25th February, 1789, it was provided 
that a certain tract of land confirmed by the Oneida Indians to 
the Stockbridge Indians should remain to the said Stockbridge 
Indians, but without any power of alienation or right of leasing 
the same lands, or any part thereof, for a longer term than ten 
years. 

On the 21st February, 1791, an act was passed authorizing 
the male Indians residing in Brothertown and New-Stockbridge, 
above 21 years of age, to meet together on the first Tuesday of 
April in each year, to choose a clerk, a marshal, and three trustees. 
The trustees were authorized, with the consent of the mayor of 
the city of Albany, to lease to any person or persons, not exceed- 
ing six hundred and forty acres, for a term not exceeding tw^en ■ 
ty-one years, for the use of the inhabitants of Brothertown and 
Stockbridge; the rents to be applied to the maintenance of a mi- 
nister and free school for the instruction of the Indians. 

By an act passed the 12th April, 1791, the provisions of the 



M^ CASES DECIDED BY THE 

last mentioned act were substantially re-enacted, with the ex- 
ception that three peace-makers were to be chosen annually, in- 
stead of three trustees, and t-hat some further powers were given 
to them, and to the Indians, for the transaction of their local 
concerns. 

By an act passed the 31st March, 1795, commissioners were 
appointed to examine into and adjust differences which had ari- 
sen between the Indians of Brothertown and the white inhabi- 
tants, in consequence of leases granted to the latter by Indians 
in their individual capacity ; and the said commissioners were 
authorized, after setting apart a certain piece of land for the use 
of the Indians, to make a division of the remainder among such 
persons as had obtained leases from the Indians and were actu- 
ally residing on the lands, and to sell the said lands to such per- 
sons ; and it was also provided that no white person should be 
dispossessed of any lands which he held under a lease given for 
ten years by the Indians in their collective capacity. 

By an act passed the 23d March, 1797, the acts authorizing 
the Stockbridge Indians to alienate or lease any part of the tract 
confirmed by the Oneida Indians to them, were repealed. 

By an act of the 28th February, 1804, one thousand acres of 
the lands of the Stockbridge Indians were directed to be leased 
in fee for the education of the Indian children in New-Stock- 
bridge. 

By an act of the 7th April, 1806, the superintendents of the 
Brothertown Indians were appointed superintendents of the 
Stockbridge Indians, and were authorized to sell or lease so 
much of their land in New-Stockbridge as w^ould enable them 
to repair their mills and create a fund for the support of old and 
decrepit persons. 

By an act passed the 3d April, 1807, the superintendents of 
the Brothertown Indians were authorized, under certain restric- 
tions, to sell or lease so much of their land on the turnpike road, 
in one or more parcels, as they should judge convenient for keep- 
ing public houses. 

By an act passed the 8th April, 1810, the sales made by the 
guperintendent of the New-Stockbridge Indians, by virtue of 
the authority given to them by law, of certain lands belonging 
to said Indians, were ratified and confirmed. 

On the 10th April, 1813, a general act was passed in relation 
to-the different tribes and nations of Indians within this state, 
embodying the provisions of previous laws. The first section, 
among other provisions, made it penal for any person to purchase 
lands of any Indian residing within the state, or to enter on 
any lands by pretext or color of any right derived from euch 



SUPERINTENDENT OF COMMON SCHOOLS. 347 

purchase since the 14th of October, 1775, unless made with the 
consent and authority of the legislature. 

By an act passed the 22d of March, 1816, the section contain- 
ing- the above mentioned provisions was suspended in relation to 
the Stockbridge Indians, so far as regards those persons, who, 
on or before the 1st of February, 1815, had settled on the Indian 
lands by virtue of leases from the Indians. The efi'ect of (his 
provision was to recognize the validity of the possessions acquir- 
ed by white settlers, under leases granted by virtue of the acts 
above referred to, from 1789 to 1810. 

Under the protection of the leases thus granted, the Indian 
lands were occupied by white settlers ; and the lands being in- 
cluded within the boundaries of particular towns, those settlers 
enjoyed all the political privileges of other inhabitants of those 
towns. 

The Indian lands withjn this state have, as settlement haa 
reached them, been included within our municipal divisions like 
all other lands within the boundaries of the state, and as has 
been seen, the legislature has assumed, from the earliest times, 
to exercise a sovereign control over them. 

The lands belonging to the Stockbridge Indians, usually 
known as New-Stockbridge, and now constituting the town of 
Stockbridge, were formerly comprised within the boundaries of 
the three towns of Vernon, Augusta and Lenox, lying partly in 
each : these lands constituted a part of those towns ; and unless 
the laws provided otherwise, they were subject to be included in 
the school districts into which these towns were divided. The 
act for the better establishment of common schools, passed the 
15th April, 1815, was in force when school district No. 12 was 
formed ; and by the lllh section it was provided, that it should 
be " the duty of the commissioners of common schools, or the 
major part of them, to divide their respective towns into a suita- 
ble and convenient number of school districts." Under this pro- 
vision, the commissioners were undoubtedly authorized to in- 
clude in the school districts formed by them all the territory em- 
braced within the boundaries of their respective towns, unless 
there was some special provision to the contrar}^, in the law from 
which their powers were derived. The existence of such a pro- 
vision has not been alleged, and none, it is believed, has ever 
existed. By the 20th section of the act last refeired to, the trus- 
tees of each school district were directed to include in their an- 
nual reports "the number of children residing in such district 
between the ages of 5 and 15 years inclusive, except Indian 
children, otherwise provided for by law." This provision was 
manifestly intended for cases in which Indian lands were in- 
cluded within the boundaries of school districts. Thus, in New- 



348 CASES DECIDED BY THE 

Stockbridge, provision had been made for the education of the In- 
dian children, as above shown^ by reference to the act of 28th of 
February, 1804, and they could not, under the act of 15th of April, 
1815, be included in the annual reports af the trustees of school 
district No. 12 ^ but if there were on Indian lands white set- 
tlers under leases from the Indians, granted in pursuance of the 
authority contained in the act of 25th of February, 1789, and 
other subsequent acts, it would have been the duty of the trus- 
tees to include their children in their reports. If the provision 
of the act of 1815 was not intended for cases precisely similar 
to this, it would be difficult to imagine its object. 

On a full review of the law applicable to the case, the Super- 
intendent of Common Schools has no doubt that the commis- 
sioners of common schools of the town of Vernon had full power 
to include within the limits of district No. 12, that part of New- 
Stockbridge which was comprised within the boundaries of the 
town of Vernon; ; nor does he entertain the slightest doubt, that 
it was the intention of the commissioners to bound the district by 
the town lines on the south and west. If ther& were any cause 
to suppose they had a different intention, the supposition would 
be repelled by the fact, that the question of boundary has never 
before been raised, although eighteen years have elapsed since 
the district was formed, and by the consideration, that if the 
town lines were not the intended limits of the district, the order 
of the commissioners would be absurd on its face. 

It is unnecessary for the purposes of this decision to inquire 
whether there were on the Stockbridge lands any white settlers 
within the town of Vernon. Whether there were or not, the 
principle is the same. Those lands were included in district No. 
12, and as they have become settled by white persons, those 
persons are entitled to all the benefits of the common school sys- 
tem, equally wnth the inhabitants of the district residing without 
the Indian boundary. 

This point being settled, the case is disposed of without dif- 
ficulty. 

By the erection of the town of Stockbrfdge,^ that oart of dis- 
trict No. 12 which was comprised within the boundaries of the 
lands belonging to the Stockbridge Indians, at the time the dis- 
trict was formed, became a part of that town. District No. 12, 
therefore, became, according to a principle long since settled by 
the Superintendent in a like case, a joint school district, and 
could only be altered with the concurrence of a maj jr part of 
the commissioners of common schools, of the towns of Vernon 
and Stockbridge. The commissioners of the former, by assum- 
ing to alter it without the concurrence of the commissioners of 



SVPERINTENDKNT OF COMMON SCHOOLS. 349 

the latter, have exceeded (heir powers, and their proceedings are 
void for want of aulhority. 

It is accordingly decided^ that the proceedings of (he commis- 
sioners of common schools of the town of Vernon, in dividing 
joint school district No. 12, in Vertjon and Stockbridge, are, 
and they are hereby declared to be, void and of no effect. 

The Commissioners of Common Schools of the town 
of Blenheim, ex parte. 

If a new district is formed so soon before the first of January as not to have had 
time to have a school kept three months by a qualified teacher, and if part of 
said district is taken from a disMict in which a school has been kept three 
months by a qualified teacher, and the residue from territory not belonging to 
any district, such new district should be allowed a share of the public money. 

This was an application for the direc(ion of the Superinten- 
dent, by the commissioners of common schools of the town of 
Blenheim, with regard to the propriety of including one of the 
school districts in said town, in the apportionment of the public 
moneys. The district had been formed so soon before the let of 
January preceding, as not to allow a suliicient time for keeping 
a school therein three months. Part of the district was taken 
from one of the other districts in the town, in which a school 
had been taught three months by a qualified teacher during the 
preceding year, and the residue of (he new ditidict was com- 
posed of territory which had never been included in the boun- 
daries of any district. 

By John A. Dix, April 18, 1837. School districts are en- 
titled to a share of the public money, if tliey have been so re- 
cently formed, previous to the 1st of January, as not to have 
had time to keep a school three months; and when formed sub- 
sequently to the first of January, and before the apportionment of 
the school moneys they are entitled to a share of those moneys, 
if they have been set off from districts in which schools have 
been taught three months by a qualified teacher, during the pre- 
ceding year. The only litnitation of this rule is, where a dis- 
trict has been formed without the consent of (he (rustees of the 
district or districts from which it is taken, and where, as the al- 
teration cannot take effect for (hree mon(hs, the new district is 
not in operation at the time of the apportionment, so that there is 
no authority existing wiihin it to receive and apply the public 
money. It appears to me, that there can be no difficulty in the 
case presented by you, if part of the new disirict was taken 
from a school distiict which fulfilled all the requirements of the 
law, and the residue is composed of territory not before annexed 
to any district. On every principle of eqtiity the district should 
receive such share of the school moneys as the whole number of 



350 CASES DECIDED BY THE 

children, between 5 and 16 years of age, residing within it, en- 
title it to. If any part of the district had been taken from an- 
other organized district, in which a school had not been kept 
three months during the previous year by a qualified teacher, that 
part would necessarily be excluded from the apportionment, which 
w^ould be made in reference to the children residing in the other 
part of the new district. The reason of such exclusion is just, 
because if the part so excluded had continued to be a part of the 
district from which it was aet off, it could have received none of 
the school moneys. 

The case preserved by you, is one not specially provided for by 
law. But as part of the new district has been taken from a dis- 
trict which has complied with the law, there can be no question 
as to the right of this part to a share of the school moneys. — 
And as to the other part, since it has never been attached to any 
district, there has been no failure to comply with the require- 
ments of the law ; and it is in respect to a failure to fulfil those 
requirements, where a compliance is possible, that a forfeiture is 
provided. You can pay over to the district the money retained 
in your hands. 

The Trustees of school district No, 3 in the town of 
Ballston, ex parte. 

Rail-road companies are taxable on their rail-ways, and other fixtures connected 
therewith, as real estate,- in the school districts within which such real estate 
is situated. 

This was an application from the trustees of school district 
No. 3 in the town of ballston, for the advice of the Superinten- 
dent with regard to their right to include in a tax list the rail- 
way and fixtures of the Rensselaer and Saratoga Rail-Road 
Company, about a mile and a half of the rail-way of which was 
included in the boundaries of that district. 

By John A. Dix, April 21, 1837. By a decree of the 
chancellor of this state, 4th vol. Paige's Chan. Rep. 384, it has 
been decided that rail-road " companies, whose stock, or the 
principal part thereof, is vested in the lands necessary for their 
roads, and in their rail-ways and other fixtures connected there- 
with, are taxable on that portion of their capital as real estate 
in the several towns or wards in which such real estate is situa- 
ted." They are, of course, taxable in school districts for com- 
mon school purposes, on so niuch of such real estate as is in- 
cluded within the boundaries of those districts. 

In the decree referred to, it was also decided, that such real estate 
" is to be taxed upon its actual value at the time of the assess- 
ment, whether that value is more or less than the original cost 
thereof" 



SUPERINTENDENT OF COMMON SCHOOLS. 351 

in ascertaining the value of so much of such real estate as is 
included within the boundaries of a school district, the trustees 
must, from the necessity of the case, be guided by the best evi- 
dence which it is in their power to obtain. They should ascer- 
tain from the assessment roll of the town, the aggregate value 
of 3o much of the real estate of the company as is within the 
town. They should then ascertain whether the proportion of that 
value, in respect to the rail-way included wnthin their district, is 
equal to the value of the whole of the real estate of the company 
included within another district in which the length of the rail-way 
is the same. This cannot always be the case, for within the boun- 
daries of one school district the company will have a depot, while 
it has none in another district. Within one school district, the rail- 
way may have a double, while in another, it may have but a single, 
track. Ail these circumstances must be ascertained and taken 
into consideration by the trustees. If the company has in a 
school district nothing but its rail-way, and has a depot within 
the same town, then the value of the depot should be deducted 
from the valuation of the real estate of the company on the last 
assessment roll of the town, as preliminary to a valuation of 
that part of the rail-way which is within the boundaries of such 
district. I make these suggestions for your consideration, leav- 
ing it to the trustees to observe the directions contained in sec. 
SO, page 483, IRS. 

The Clerk of school district No. 7 in the town of 
West Turin, ex parte. 

It" a special meeting is called under a notice to take into consideration the pro- 
priety of building a new school-house, and, if thought proper, to lay a tax for 
the purpose, it is a sufficient notice to warrant the inhabitants at such meeting 
to vote a tax to repair the old school-house. 

In school district No. 7 in the town of West Turin, the fol- 
lowing notice was issued by the trustees : 

" To the Clerk of school district No. 7 in West Turin : We, 
the subscribers, trustees of said district, hereby order you to no- 
tify the taxable inhabitants of the aforesaid district, that a spe- 
cial school meeting will be held at the school-house in said dis- 
trict on the 23d day of March inst. at 6 o'clock P. M., for the 
purpose of taking into consideration the propriety of building a 
new school-house in said district, and if thought advisable at 
said meeting to build, then to levy a tax on the inhabitants of 
said district for the purpose of building. Dated at West Turin 
this 14th day of March, 1837. 

H. Johnson, ) 

N. Wood, > Tru^teesP 

F. E. Taylor, \ 



352 CASES DECIDED BY THE 

The question submitted to the Superintendent was, whether 
at the meeting called in pursuance to this notice, a tax could be 
voted to repair the old school-house. 

By John A. Dix, April 24, 1837. I am of opinion that the 
notice given in your district on the l4th of March for a special 
meeting to "take into consideration the propriety of building a 
new school-house in said district, and if thought advisable at 
said meeting to build, then to levy a tax," (fee, was sufficient to 
justify the inhabitants to vote a tax to repair the old house. 
The two objects are so nearly allied that no one can complain of 
surprise ; and it seems to be manifest that if the main object of 
the meeting, that of raising money to build a new school-house, 
should fail, the other, that of raising money to repair the old 
one, almost necescsarily follows. If any one felt aggrieved, he 
should have appealed within the time limited by regulation ; 
but as there is no appeal, the trustees may go on and levy on 
the taxable property of the district the sum voted. 

The Commissioners of Common Schools of the town 
of Burton, ex parte. 

When a town is divided and a new one formed, after the assessment of taxes 
has been made in the former, the school moneys levied on such town should, 
when collected, be divided in the same proportion as the moneys derived from 
the common school fund. 

On the 12th of May, 1836, an act was passed dividing the 
town of Burton and erecting the town of Humphrey from a part 
of it, the first town meeting in which was to be held on the first 
Tuesday of March, 1837. The question presented was, in what 
manner the amount levied for coinmon school purposes on the 
taxable property of the town of Burton in 1836, should be di- 
vided between that town and the new town of Humphrey, with 
a view to the apportionment to be made on the first Tuesday of 
April. 

By John A. Dix, Mai/ 13, 1837. The moneys levied in 
the town of Burton for common school purposes, previous to the 
time at which the act for the erection of the town of Humphiey 
took effect, must be divided between those towns in the same 
proportion in which the moneys distributed to the towns from 
the common school fund were apportioned by the Superinten- 
dent to the towns of Humphrey and Burton. Thus, the origi- 
nal town of Burton was entitled to $40.94, of which the sum 
of $18.31 was given to Humphrey, leaving to Burton the sum 
of $22.63; or. for every dollar given to Humphrey, $1.23 
should be given to Burton. This is cis near an approximation 
to a true result as can be attained. 



superintendent of common schools. 353 

(anonymous.) 

A commissioner of common schools may be a trustee of a school district. 

By John A. Dix, May 19, 1837. A commissioner of com- 
mon schools may be a trustee of a school district ; that is, there 
is no legal disqualification. At the same time, it is better that no 
one individual should hold both offices, as questions may arise in 
which there may be conflicting interests to adjust between the 
commissioners and trustees. At all events, a proper feeling of 
delicacy would seem to suggest, in such a case, that the individual 
should resign one office or the other. 

The Trustees of school district No. 4 in the town of 
Sharon, ex parte. 

If the inhabitants of a school district authorize the trustees to select a site for a 
school-house, it is not a legal site until subsequently fixed by a vote of the in- 
habitants. 

The inhabitants of a school district cannot authorize the trustees to borrow mo- 
ney. 

Jf part of a resolution passed by the inhabitants of a school district is void, the 
whole resolution is vitiated. 

If at an annual meeting a vote is passed in relation to the erection of a school- 
house or the choice of a site, and a special meeting is subsequently called un- 
der a notice to reconsider the proceedings of the annual meeting, it is a suffi- 
cient designation of the object of the meeting to justify the inhabitants in re- 
scinding or modifying such vote. 

This was an application to the Superintendent for his opinion 
with regard to certain proceedings in school district No. 4 in the 
town of Sharon. The facts of the case are stated in his opi- 
nion. 

By John A. Dix, May 29, 1837. On the 3d day of April 
last, at an annual meeting held in school district No. 4 in the 
town of Sharon, a vote was taken to build a stone school-house, 
the site to be selected by the trustees between two points desig- 
nated in the resolution. It was also voted at the same time that 
the trustees should borrow ,$12.5 for the purpose of procuring ma- 
terials for the building. 

At a subsequent day, the trustees having met to receive pro- 
posals for building, it was, on reflection, deemed advisable to call 
a special meeting of the inhabitants of the district for the pur- 
pose of reconsidering the former proceedings. A meeting was 
accordingly called on the 3d of May inst. for the purpose of tak- 
ing "into consideration the propriety of reconsidering the pro- 
<^eedings of the annual meeting, and such other business" as the 
inhabitants should find necessary. Due notice was given to ev- 
ery inhabitant entitled to vote, and the meeting was held, four- 
dfths of the whole number of inhabitants being present. On 

23 



CASES DECIDED BY THE 



reconsidering the proceedings of the annual meeting, it wa& 
unanimously resolved that the school-house should be built of 
wood instead of stone, and a tax of $250 was voted for the pur- 



The proceedings of the annual meeting in relation to building 
a school- house are void, for the followitvg reasons : ist. The in- 
habitants of the district must designate the site for the school- 
house themselves ; they cannot leave the choice to the trustees 
or to any other persons. 2d. The inhabitants of a school dis- 
trict cannot authorize the trustees to borrow money. No part of 
the proceedings was authorized by law, excepting so much as 
relates to the materials of which the house was to be built. By 
the statement presented to me, it would appear that the vote au 
thorizing the trustees to fix the site for the school-house was part 
of the same resolution which prescribed the nature of the mate- 
rials to be used. The whole resolution must tlierefore fall, as 
that part of it which is void vitiates the residue; but if that part 
which relates to the materials could be sustained, it would make 
no diflerence, as the vote at the subsequent meeting annulled it. 

The proceedings of the meeting on the 3d of May are valid. 
The only question which can possibly arise is, whether the no- 
tice was sufficient? On this point 1 entertain no doubt. The 
law does not prescribe that the object of a special meeting shall 
be stated in the notice. This duty is enjoined by the Superin- 
tendent in the directions and forms of proceedings furnished by 
him, and he will require in all cases that it shall be performed 
in good faith. The notice for the meeting on the 3d May, set 
forth that the object was to reconsider " the proceedings of the^ 
annual meeting." The pi'oceedings referred to were a matter of 
notoriety, and it is not alleged that any one has been taken by 
surprise in rescinding them, so far as the school house is directed 
to be built of wood instead of stone. Indeed, it is manifest from 
the great proportion of the inhabitants who attended the meet- 
ing, and from the unanimity which distinguished it, that the 
voice of the district has been fairly and clearly expressed. T& 
attempt to overthrow the proceedings upon grounds merely tech- 
nical, is, to say the least, ungracious, and can lead to no good 
result. But even the want of technical regularity is not shown. 
The notice is a substantial compliance with the forms and direc- 
tions prescribed by the Superintendent ; and the object of the 
notice, to apprize each inhabitant of the business proposed to be 
acted on, seems to have been fully attained. The trustees should 
proceed to collect the tax. 

At the last meeting no vote was taken in relation to the sitc 
As has already been stated, it must be designated by the inha- 
bitants, although such designation need not necessarily precede 



SUPERINTENDENT OF COMMON SCHOOLS. 355 

the collection of the tax. At the same time, the most unexcep- 
tionable course of proceeding in all cases, is to designate the site 
first, and then vote the tax to purchase it and build the school- 
house. 

The trustees may, if they choose, examine the ground be- 
tween the two points mentioned in the resoluiion passed on the 
3d of April, but such examination can only be for tiic purpose of 
giving their advice to the inhabitants at a future meeting with 
regard to a proper place for a site for the district school-house. 
Tliis proceeding can have no force whatever, so far as the 
choice of the site is concerned. To make the selection legal, the 
inhabitants must give a direct vole upon it, and fix the spot on 
which the school-house is tostand. 

The Trustees of school district No. 8 in the town of 
Kingsbury, against the Commissioners of Common 
Schools of said town. 

if a school district formed nine months hef .re the first of January, i3 unable to pro- 
cure a suitable room for keeping schoo', and cannot succeed in building a 
school-house in time to have a school kept tiiree months by a qualified teach- 
er, the Superintendent will, on application to him, allow s-uch district a por- 
tion of the public moneys, if the time during which the inha'>itaiit.s have con- 
tributed to the support of a school by a qualified teacher in the new district, 
and in the district Irom which it was taken, is equal to three months. 

This was an appeal to the Superintendent by the trustees of 
school district No. 8 in the town of Kingsbury, under circum- 
stances which are fully explained in the Superintendent's order. 

By John A. Dix, Map 29, 1837. On the 28ih day of 
March, 1836, school district No. 8 in the town of Kingsbury, 
was divided, and school district No. 1.5 was formed from a pait 
of it. The latter district was organized by the appointment of 
officers on the 11th of April ensuing. On the 2d of May a site 
for a school-house was selected, and arrangement* were soon af- 
terwards made for building the house ; but the difficulty of pro- 
curing labor and materials at that season of the year was such 
that the house was not completed until the last of November. 
In consequence of this difficulty, and the impossibility of hiring 
a building for a school-house, an agreement was entered into 
with district No. 8, and the inhabitants of No. 15 coritinued 
through the summer to send their children to the school in that 
district. On the 1st of December ensuing, the school-house in 
No. 15 being completed, a school was commenced by a qualified 
teacher, and continued to the end of the year. The school in 
No. 8, to which the inhabitants of No. 15 had sent their child- 
ren during two months and a half of the summer terra, Avas 
also kept by a qualified teacher, so that they had, for more than 



356 CASES DECIDED BY THE 

three months, during the year 1836, and subsequently to their 
separation from No. 8, contributed to the support of a school 
kept by a quaUfied teacher. School district No. 8 had also, dur- 
ing the year 1836, a school kept by a qualified teacher for the 
full period of three months. 

The facts above stated were substantially presented by the an- 
nual report of district No. 15 to the commissioners of common 
schools, who lefused, in apportioning the school moneys for the 
present year, to allow any portion of them to No. 15. From this 
decision the trustees of district No. 15 appeal. A copy of the 
appeal, with the proper notice, has been served on the commis- 
sioners, and as they do not answer, the Superintendent infers 
that they are willing to submit the case for his decision upon the 
facts stated by the appellants. 

By the act of April 21, 1831, where "a school district shall 
have been formed at such time previous to the first of January 
as not to have allowed a reasonable time to have kept a school 
therein for the term of three months," it becomes entitled to a 
share of the public moneys, if it is formed out of a district in 
which a school shall have been kept three months by a qualified 
teacher. School district No. 15 was formed in the month of 
March, 1836. It had, therefore, more than nine months before 
the expiration of the year for keeping such a school. This was 
certainly a reasonable time, and the commissioners of common 
schools were right in refusing to apportion to it a share of the 
school moneys. The only question for them to decide was, 
whether the district had a reasonable time before the 1st of Janu- 
ary to keep a school three nionths? And this question being de- 
cided in the affirmative, they could not allow it any portion of the 
public mone3^ 

But there are circumstances in this case which, though they 
could not be taken into consideration by the commissioners fox 
the purpose of varying the plain requirements of the law, may 
be properly addressed to the Superintendent, with a view to such 
an interposition on his part as to save, if possible, the equitable 
lights of the district. 

The object of the prpvision of the act of 1831,. above quoted, 
was to secure to districts formed at so late a period of the year as 
not to have afforded sufficient time to have a school kept in them 
by a qualified teacher for the period of three raontlis before the 
first of January ensuing, on which day the annual reports of the 
school districts must be dated, a participation in the distribution 
of the school moneys to be made on the basis of those reports. 
"With this provision was connected another which was intended 
to put such districts on the footing of all others in the state; that 
they should not receive any share of the school moneys unlese 



SUPERINTENDENT OP COMMON SCHOOLS. 357 

Uiey were taken from districts in which schools had been kept 
three months by a quahfied teacher, during the year preceding the 
lust of January. This is a fundamental provision of the com- 
mon school system, and is deemed indispensable to maintain its 
efficiency. As has been already seen, district No. 15 had substan- 
tially fulfilled this requirement. Not only had district No. 8, 
from which it was taken, supported for three months previous 
to the first of January a school kept by a qualified teacher, but 
the inhabitants of No. 15 had contributed to the maintenance 
of such a school for more than three months. The design of 
tlie law had, in this respect, therefore, been accomplished. 

It is true that district No. 15 had a reasonable time before the 
first of January to have a school kept within it three months; and 
but for strong reasons the Superintendent would not deem him- 
self at liberty to interpose. These reasons consist in the inabili- 
ty of the district to procure a proper building for keeping school 
while the school-house was in a course of construction, and the 
difficulty of procuring labor and materials to complete the house 
before the last of November. The inhabitants did all in their 
power, imder the circunjstances, to carry into execution the re- 
quirements of the law. They entered into an arrangement with 
the district from which they were taken, and provided their chil- 
dren, at the school in that district, with the instruction which the 
law enjoins. If there had been any laches on their part; and if 
they had not contributed to the support of a school kept by a quali- 
fied teacher, so as to make up the legal term of instruction, the 
Superintendent would not interpose. But as the inhabitants of 
the district have acted in good faith, and have substantially carried 
into effect the requirements of the law; and as they were pre- 
vented by causes not M'ithin their control frojii complying lite- 
rally with these requirements : 

It is hereby ordered, that the commissioners of common schools 
of the town of Kingsbury pay to the trustees of school district 
No. 15 in said town, out of the school moneys next to be distri- 
buted, such sum as that district would have been entitled to re- 
ceive for the present year, if a school had been kept therein three 
months during the year 1836 by a qualified teacher. 

The Trustees of school district No. in the town 

of Batavia, ex parte. 

If an inhabitant removes from a district before the end of one month after a tax 
13 voted, and before the tax list is delivered to the collector, he cannot be 
included in it, the tax list not being complete until the end of the month, if it 
remains in the hands of the trustees. 

In this case a tenant in the occupation of a farm in a school 
district in the town of Batavia removed from the district after a 



358 CASES DECIDED BY THE 

tax was voted, but before the tax list was put into the hands of 
the collector; but it did not appear distinctly from the statement 
presented to the Superintendent, whether one month had elapsed 
after the tax was voted and before the tenant removed. 

By John A. Dix, June 13, 1837. If the tenant referred to 
in your letter was a taxable inhabitant of the district at the time 
the tax list was made out, he should have been included in it, and 
if he removed subsequently, he would he liable for the amount 
of the tax assessed to him. The only question is, when was 
the tax list made out? I think the tax list must be considered in- 
complete, if it remains in the hands of the trustees, until the last 
day of the month allowed them for making it out; and if an in- 
habitant removes fiom the district before that day he cannot be 
included in it. If they deliver it to the collector at the end of 
fifteen or twenty days, it is beyond their control, and they can- 
not recall it for the purpose of making alterations, though mere 
errors discovered after that time may be corrected. But if the 
tax list remains in their hands until the twenty-ninth day after 
the tax was voted, they may and should make it conform to the 
condition of the district in respect to its taxable inhabitants on 
that day. After the expiration of the month they can make no 
alteration in it, though it may not have been delivered to the col- 
lector. 

The Trustees of school district No. in the town 

of Ovid, ex parte. 

When anew district is formed, if the commissioners of commoiv schools neglec* 
to issue a notice for the first district meeting, within twenty days, they may 
issue it at a subsequent time. 

If a notice is issued for the first district meeting in a new district, formed without 
the consent of the trustees of the district or districts from which it was taken, 
and the time fixed for such meeting is within three months after service of 
notice on such trustees of the alteration made in their districts, the notice 
issued for such first district meeting is void, and the commissioners may issue 
another at a subsequent time. 

If the notice for the first district meeting in a new district is not void, but merely 
defective in form, application may be made to the Superintendent to amend it. 

This was an application for the opinion of the Superintendent 
in a case in which a new district had been formed in the town 
of Ovid, and in the organization of which a doubt had arisen ae 
to the effect of a notice appointing the first district meeting be- 
fore the expiration of three months after notice in writing to the 
trustees of the districts from which such new district was taken, 
said trustees not having consented to the alterations made in their 
respective districts. 

By John A. Dix, June 29, 1837. By 1 R. S. sec. 55, page 
477, the commissioners of common schools are required, whenever 



SUPERINTENDENT OP COMMON SCHOOLS. 359 

a school district is formed by them, to prepare a notice in writing, 
within twenty days thereafter, describing such district and ap- 
pointing a time and place for I he first district meeting, and to de- 
liver such notice to a taxable inhabitant of the district. 

By 1 R. S. sec. 2^}, page 471, it is provided that "no alteration 
of any school district, made without the consent of the trustees 
thereof, shall take effect until three months after notice in writing 
shall be given by the commissioners to some one or more of such 
trustees." 

These two provisions must, if possible, be so construed that 
both may stand ; and in this there is no difficulty. If an alte- 
ration is made in one or more existing districts, without the con- 
sent of trustess, it cannot take eflect until three months after no- 
tice in writing to the trustees, &c. The formation of a new 
district necessarily involves an alteration of existing districts, ex- 
cepting those uncommon cases in whiph school districts are form- 
ed out of territory previously unsettled, and for want of inhabi- 
tants not included within the boundaries of any district. In these 
cases the commissioners may issue their notice for the first dis- 
trict meeting, which may be held after the expiration of six days, 
if the notice is immediately served. But if a new district is form- 
ed out of territory included in existing districts, so as to alter the 
latter, and the trustees do not consent to such alteration, it can- 
not take effect until three months after notice in writing, <fcc. 
In the application of this rule the Superintendent has decided 
that no act touching the organization of the new district is valid 
if done before the expiration of the three months, so that an 
election before that time has expired would be void for want of 
authority. 

Notwithstanding this decision the commissioners should issue 
their notice for the first district meeting within twenty days after 
the district is formed ; but the time appointed for the meeting 
must be at some period subsequent to the expiration of three 
months after notice in writing to the trustees of the district or 
districts from which it is taken. It is hardly necessary to say, that 
if the trustees of the altered districts consent, the new district 
may organize immediately, in the same manner as though it 
had been formed out of territory not previously attached to any 
district. 

The provisions above quoted with regard to the notice to be 
given by the commissioners may be violated in three modes. 

1. The commissioners may neglect to issue their notice with- 
in twenty days: 

2. They may issue it within twenty days, and appoint the time 
for the first district meeting before the expiration of three months: 



360 CASES DECIBED BY THE 

3. They may issue a notice which is in some matter of form 
defective. 

1. If the commissioners do not issue any notice within twenty 
days they may perform the duty at a subsequent time, as the 
provision of law requiring them to do it within that time is direc- 
tory only; and if the duty is neglected it should be subsequently 
performed, so that third persons may sustain no injury. This is 
the general rule of law, where the authority of the officer is not 
intended to be limited by the specification of time, and it appears 
to me to be applicable to this case. 

2. If the notice for the first meeting in the new district is issued 
within twenty days, and the time appointed for the meeting is 
within three months, and the trustees have not consented to the 
alteration, the notice is void. It appoints a day in violation of an 
express prohibition of the statute. It is, in contemplation of law, 
no notice at all; and the commissioners may issue another, pre- 
cisely as though they had issued none. 

3. If the notice does not on its face show a direct violation ot 
the statute, but is defective in some matter of form, application 
may be made to the Superintendent for authority to amend it. 
Having issued an order which is not void, the commisioners can- 
not issue another without being empowered to do so by the pro- 
per authority ; although they may doubtless rescind their order 
for the formation of the new district and commence anew. 



APPENDIX. 



LAWS 



RELATING TO 



COMMON SCHOOLS, 



FORMS AND REGULATIONS 



PRESCRIBED FOR THEIR GOTERNMENT. 



[This edition of the Statutes relating to Common Schools, is in 
conformity to an edition of the Revised Statutes of the state, with 
the amendments thereto, recently published by the Revisers. Some 
of the sections have double numbers. In every such case, the last 
number refers to the original edition of the Revised Statutes. In 
the annexed Forms and Regulations, the numbers of the sections 
fjs given in the present edition are referred to ; but the foregoing 
Decisions of the Superintendent refer to the numbers of the sections 
in the original edition. The Decisions also refer to the pages of 
the original edition of the Revised Statutes, which are shown by 
the figures, with asterisks annexed, on the margins of the follow- 
ing pages.] 



LAWS. 



REVISED STATUTES 

RELATING TO 

COMMON SCHOOLS, 

TITLE II. CHAPTER XV. 



TITLE II. 

OF COMMON SCHOOLS. 



Art. 1. — Of the powers and duties of the superintendent of common 
schools, and of the apportionment of school moneys. 

Art. 2. —Of the distribution of the common school fund. 

Art. 3 — Of the powers and duties of the commissioners of common 
schools. 

Art. 4. — Of the inspectors of common schools. 

Art. 6. — Of the formation of school districts, and of the choice, da- 
ties and powers of their officers. 

Art. 6. — Of certain duties of the county clerk. 

ARTICLE FIRST. 

Of the Powers and duties of the Superintendent of 
Common Schools, mid of the Apportio?iment of 
ScJiool Moneys. 

Sbc. 1. Superintendent must make annual report to the legislature; eoo- 
tenis thereof. 

2. When school moneys to be apportioned. 

3. How apportionment to be made. 

4. How an increase apportioned. 

5. How apporiionment made when census defective. 

G. New apportionment to be made in certain cases, and how. 

7. Apporiionment to be certified, and notice to be given. 

8. Superintendent to prepare forms and instructions, and transmit 

them to officers. 

9. Six first Articles of this Title to be printed and distributed. 

10. Reasonable expenses of superintendent to be paid out of treasury. 

*§ 1. There shall continue to be a superintendent of i)^ 4ei 
common schools, whose duty, amongst other things, it t*?es"of^u^^ 
shall be, to prepare and submit an annual report to the 'nt^ndew- 
legislature containing, 

1 . A statement of the condition of the common schools 
of the state : 

2. Estimates and accounts of e :i enditures of the 
school moneys : 



364 



LAWS RELATING TO 



Apnnrtion 
went. 



Increase. 



Proceeding 
when cen- 
sus defec- 
tive, 



Wlieu town 
altered. 



« 468 



Certificate 
asd notice. 



3. Plans for the improvement and management of 
the common school fund, and for the better organizatioa 
of the common schools ; and, 

4. All such matters relating to his office, and to the 
common schools, as he shall deem expedient to commu- 
nicate. 

^ 2. In every year, immediately following a year in 
which a census of the population of this state shall have 
been taken, under the authority of the state, or of the 
United States, the superintendent shall apportion the 
school moneys to be annually distributed, amongst the 
several counties of the state, and the share of each coun- 
ty, amongst its respective towns and cities. 

^ 3. Such apportionment shall be made among the 
several towns and cities of the state, ^ according to the ratio 
of their population respectively, as compared with the 
population of the whole state, according to the last pre- 
ceding census. 

^ 4. [Sec. 5.] If an increase of the school moneys to 
be distributed, shall take place in any other year, than 
one immediately following a census, the superintendent 
shall apportion such increase amongst the several coun- 
ties, cities and towns, according to the ratio of the ap- 
portionment then in force. 

§ 5. [Sec. 6.] When the census, or returns, upon 
which an apportionment is to be made, shall be so far 
defective, in respect to any county, city, or town, as to 
render it impracticable for the superintendent to ascer- 
tain the share of school moneys, which ought then to be 
apportionment to such county, city, or town, he shall as- 
certain, by the best evidence in his power, the facts up- 
on which the ratio of such apportionment shall depend, 
and shall make the apportionment accordingly. 

§ 6. [Sec. 7.] Whenever, in consequence of the di- 
vision of a town, or the erection of a new town, in any 
county, the apportionment then in force shall become 
unjust, as between two or more of the towns of such 
county, the superintendent shall make a new apportion- 
ment of *the school moneys, next to be distributed amongst 
such towns, ascertaining by the best evidence in his 
power, the facts upon which the ratio of apportionment, 
as to such towns, shall depend. 

^ 7. I Sec. 8.] The superintendent shall certify each 
apportionment made by him, to the comptroller, and shall 



(1) Amendatory act of 1830, chap. 320, § 5, and by § 6 of same ch. the 
orig. § 4 is repealed. 



COMMON SCHOOLS. 36^ 

give immediate notice thereof, (o the clerk of each coun- 
ty interested (lierein, and to (fie clerk of the city and 
county of New-Yoik ; stating tlie aiiioimt of moneys ap- 
portioned to his county, and to each town and cily there- 
in, and the time when the same will be payable lo the 
treasurer of such county, or to the chamberlain of the 
city of New- York. 

g 8. [Sec. 9.] The superintendent shall prepare sui- ^^s"'^"*"", 
table forms and regulations for making all report^, and 
conducting all necessary proceedings, under this Title, 
and shall cause the same, with such instructions as he 
shall deem necessary and proper, for the better oiganiza- 
tion and government of conmion schools, to be trans- 
mitted to the officers required to execute the provisions 
of this Title throughout the state. 

^ 9. [Sec. 10.] He shall cause so many copies of thecenain ani- 
first six Articles of this Title, with the form.^ regula- printed. * 
tions and instructions prepared by him, thereto annexed, 
to be, from time to time, printed and distributed amotigst 
the several school districts of the state, as he shall deem 
the public good to require. 

^ 10. [Sec. 11.] All moneys reasonably expended by Expenses 
him, in the execution of his duties, shall, upon due 
proof, be allowed to him by the comptroller, and be paid 
out of the treasury. 

ARTICLE SECOND. 
Of the distribution of the Common School F\ind. 

Sec. IL When school moneys to be paid; how; to whom. 

12. To be applied for as soon as payable. 

13. County treasurer to give notice to commissioners of common 

schools. 

14. Duty of treasurer if moneys are not applied for. 

15. Duty of clerk of county on receiving notice of apportionment. 

16. A sum equal to that apportioned, to be raised in each town. 

17. To be paid to commissioners of common schools. 

18. If no commissioners, to be paid to treasurer. 

g 11. [Sec. 12.] The sum annually to be distributed ^^'^«° »^'''- 
for the encouragenient of common schools, shall be paid 
on the first day of February, in every year, on the war- 
rant of the comptroller, to the treasurers of the several 
counties, and the chamberlain of the city of New- York. 

^ 12. [Sec. 13.] The treasurer of each county, and Treasurer to 
the chamberlain of the city of New- York, shall apply ^''p'^' 
for and receive the school moneys apportioned to their re- 
spective counties, as soon as the same become payable. 

*'§, 13. [Sec. 14.] Each treasurer receiving such mo-.j,^*.*60 
neya, shall give notice, in writing, to some one or more tioe! 
of the commissioners of common schools of each town 



3t>6 LAWS RELATING TO 

or city in his county, of the amount apportioned to such 
town or city, and shall hold the same subject to the or- 
der of such commissioners. 
Mon«ysrB ^ 14. [Scc. 15.] In casc the commissioners of any 
dispasfdoTsuch city Or town shall not apply for and receive such 
moneys, or in case there are no commissioners appointed 
in the same, before the next receipt of moneys apportion- 
ed to the county, the moneys so remaining with the trea- 
surer shall be retained by him, and be added to the mo- 
neys next received by him for distribution from the su- 
perintendent of common schools, and be distributed 
therewith, and in the same proportion, 
oouniy ^ 15. [Sec. 16.] Whenever the clerk of any county 

shall receive from the superintendent of common schools 
notice of the apportionment of moneys to be distributed 
in the county, he shall file the same in his office, and 
transmit a certified copy thereof to the county treasurer, 
and to the clerk of the board of supervisors of the coun- 
ty; and the clerk of the board of supervisors shall lay 
such copy before the supervisors at their next meeting. 
ouiyoi ^ 16. [Sec. 17.] It shall be the duty of the supervi- 

pe^ii^M^"" s°^'^5 ^^ such meeting, and at every annual meeting 
thereafter, to add to the sums of money to be raised on 
each of the towns of the coimty, for defraying the ne- 
cessary expenses thereof, a sum equal to the school mo- 
neys which shall have been apportioned to such town ; 
which moneys, so added, together with the fees of the 
collector, shall be levied and collected in the same man- 
ner as other moneys directed to be raised in the town. 
*^ ^ 17. [Sec. 18.] The supervisors shall cause and re- 

quire the collector of eacli town, by their warrant to him, 
to pay the niineys so added, when collected, retaining 
his fees for collection, to some one or more of the com- 
missioners of common schools in such town, for the use 
of common schools therein ; whose receipt therefor shall 
be sufficient evidence of such payment, 
wiienmo- g 18. [Sec. 19.] If there shall uot be any commissioD- 
pafdtoirea- 6's of common schools in such town when the moneys 
surer. g^^e Collected, the collector shall pay the same, retaining 

his fees for collection, to the county treasurer, to be by 
him apportioned among the several cities and towns in 
the county, and distributed in the manner provided in 
the fifteenth [14th] section of this Title. 



COMMON SCHOOLS. 36T 

•ARTICLE THIRD. * 41^0 

Of the Powers and Duties of the Commissioners of 
Common Schools. 

Stc. 19. Enumeration of certain duties of the coniinissioners. 

•iO. Comuiiasioners when to form and alter districts, in two or more 

towns. 
31. When to take effect, if trustees do not consent. 
i!2, 23 &, 24, In what cases apportionment of school moneys not to 

be made. 
25 & 2(j. In what rases commissioners to make new apportionment. 
27. What commissioners to do with moneys remaining m their hands, 

in certain cases. 
•JH. Moneys remaining two years, in certain cases, to be returned to 

treasurer. 
2y. Commissioners to make annual report to county clerk; contents. 

30. If report not made, county clerk lo give notice to clerk of towiu 

31. Commissioners to forfeit $10; moneys for next year may be with- 

held. 
.J2. If moneys lost to town, commissioners to forfeit full amount. 

33. Supervisor of town to prosecute, 

34. Commissioners to k?ep account of moneys; to whom submitted, 

35. Must give account of moneys to successors; to be filed. 

36. If balance remain, it must be paid forthwith. 

37. If balance appropriated, it must be stated and paid accordingly. 

38. For breach of any provision of three last sections, penalty of 

$1U0, 

39. Successors to prosecute for forfeiture. 

40. Successors may bring suit for unpaid balance. 

41. If commissioner dead, suit may be brought against his represen- 

tatives. 

42. Commissioners have powers of a corporation to certain ext«nt. 

43. Town clerk, clerk of commissioners; his duty. 

.^ 19. [Sec. 20.1 It shall be the duty of the commis- Dutie*. of 
unoners or common schools, in each town, siciera. 

1. To divide their town into a convenient number of 
school districts, and to regulate and alter such districts 
as hereinafter provided : 

2. To set off by itself any neighborhood in their town 
adjoining to any other state of this Union, where it has 
been usual, or shall be found convenient for such neigh- 
borhood to send their children to a school in such adjoin- 
ing state : 

3. To describe and number the school districts, and 
to deliver the description and numbers thereof, in writ- 
ing, to the town clerk, immediately after the formation 
or alteration thereof: 

4. To deliver to such town clerk a description of each 
neighborhood, adjoining to any other state, set off by itself: 

6. To apply for and receive from the county treasurer, 
all moneys apportioned for the use of common schools 
in their town, and from the collector of the town, all 
moneys raised therein for the same purpose, as soon as 
auch moneys shall become payable, or be collected. 

6. To apportion the school moneys received by them, 
OS* the first Tuesday of April, in each year, among the 



368 LAWS RELATING TO 

several school districts, parts of districts, and neighbor- 
hoods separately set otT, within their town, in proportion 
to the number of cliildren residing in each, over the age 
of five, and under that of sixteen years, as the same shall 
have appeared from the last annual reports of their re 
spective trustees : 

7. If the commissioneis shall have received the school 
moneys of their town, and all the reports from the seve- 
ral school districts therein, before the first Tuesday of 

* 471 April, they shall apportion such moneys *as above direct- 
ed, within ten days, after receiving all of the said re- 
ports and the said moneys : 

8. To sue for and collect, by their name of ofiice, all 
penalties and forfeitures imposed in this Title, and in 
respect to which no other provision is made, which shall 
be inciured by any officer or inhabitant of their town : 
and after deducting their costs and expenses, to add the 

if.'^Part^t''' sums recovered, to the school moneys received by them, 
Title 6] jQ Ijq apportioned and paid in the same manner.^ 
Districts iS 20. rSec. 21.1 Whenever it may be necessary or 

from several «^ • ^, . r i- . • . ^ r^ J- • 

town? convenient, to lorm a district out ot two or more adjoin- 

ing towns, the commissioners from each of such adjoin- 
ing towns, or (he major part of them, may form, regu- 
late and alter such district. 
consiQtof i5 21. [Sec. 22. j No alteration of any school district, 
ir.a9tees. jj-,ade without the consent of the trustees thereof, shall 
take effect until three months after notice, in writing, 
shall be given b}' the commissioners, to some one or more 
of such trustees. 
When mo- ^ 22. [Scc. 23.] In making tlie apportionment of mo- 
hehi^'^' neys among the several school districts, no share shall be 
allotted to any district, part of a district, or separate neigh- 
borhood, from which no sufficient annual report shall 
have been received, for the year ending on the last day 
of December, immediately preceding (he apportionment. 
^^- § 23. [Sec. 24.] No moneys shall be apportioned and 

paid to any district or part of a district, unless it shall 
appear by such report, that a school had been kept there- 
in for at least three months, during the year ending at 
the date of such report, by a qualified teacher ; and that 
all moneys received from the commissioners during that 
year, have been applied to the payment of the compen- 
sation of such teacher. 

(1) Laws of 1819, p. 192, and p. 194, § 12 lo 15. By laws of 1329, chap 
287, the commissioners are also to take charge of the " Common School 
Fund" of their town, created by a vote appropriating surplus poor moneys^ 
See Chap. 11, Part 1, Title 6, for this act. 



COMMON SCHOOLS. 369 

§ 24. [Sec. 25.] No part of such moneys shall be ap- JJ^^J*"^^^; 
j)ortioned or paid to any separate neighborhood, unless it hew, 
shall appear from the report of its trustee, that all mo- 
neys received by him from the commissioners, during 
the year ending at the dale of such report, have been 
faithfully applied, in paying for the instruction of child- 
ren residing in such neighborhood. 

^ 25. [Sec. 26.1 If after the annual reports of the dis- App..rti..n- 

• I S I . -1 11^1 .• metit to ilis- 

tricts shall have been received, and before the apportion- trictaitere^j 
mentof the school moneys shall have been made by thorepoV"""^ 
commissioners, a district shall be duly altered, or a new 
dbtrict be formed in the town, so as to render an appor- 
tionment founded solely on the annual reports, unjust, 
as between two or more districts of the town, the com- 
missioners shall make an apportionment among such 
districts, according to the number of children in each, 
over the age of five and under sixteen years, ascertain- 
ing that number by the best evidence in their power. 

§ 26. The provisions of the twenty-sixth section of Last section 
Article third. Title second of Chapter fifteen of the orhe? cLes. 
First Part of the Revised Statutes, are hereby extended 
to all cases where a school district shall have been form- 
ed at such time previous to the first day of January, as 
not to have allowed a reasonable time to have kept a 
school therein for the term of three months, such district 
having been formed out of a district or districts in which 
a school shall have been kept for three months, by a 
teacher duly qualified, during the year preceding the 
first day of January.* 

*^ 27. All moneys apportioned by the commissioners, « 472 
to the trustees of a district, part of a district, or separate yg^Tm ""* 
neighborhood, which shall have remained in the hands '>ancis of 
of the commissioners for one year alter such apportion- ^rs. 
ment, by reason of the trustees neglecting or refusing to 
receive the same, shall be added to the moneys next there- 
after to be apportioned by the commissioners, and shall 
be apportioned and paid therewith, in the same manner. 

^ 28. In case any school moneys received by the com- when re- 
missioners. can not be apportioned by them, for the term treasurer. 
of two years, after the same are received, by reason of 
the non-compliance of all the school districts in their 
town with the provisions of this Title, such moneys shall 
be returned by them to the county treasurer, to be by 
him apportioned and distributed, together and in the 

(I) Laws 1831, chap. 206, § 1. 

24 



370 LAWS RELATING TO 

sanie manner with the moneys next thereafter to be re- 
ceived by him, for the use of common schools. 
Annual re- ^29. It shall be the duty of the commissioners in 
^ioners"' each town, between the first day of July and the first 
day of August' in each year, to make and transmit to the 
county clerk, a report in writing, bearing date on the first 
day of July, in the year of its transmission, and stating. 

1. The whole number of school districts and neigh- 
borhoods, separately set off within their town : 

2. The districts, parts of districts, and neighborhoods, 
from which reports shall have been made to the commis- 
sioners, or their immediate predecessors in office, withinr 
the time limited for that purpose : 

3. The length of time a school shall have been kept 
in each of such districts or parts of districts, distinguish- 
ing what portion of that time, the school shall have been 
kept by quaUfied teachers. 

4. The amount of public moneys received in each of 
such districts, parts of districts and neighborhoods : 

5. The number of children taught in each, and the 
number of children over the age of five and under six- 
teen years, residing in each : 

6. The whole amount of moneys received by the com- 
missioners, or their predecessors in office, during the year 
ending at the date of their report, and since the date of 
their last preceding report ; distinguishing the amount 
received from the county treasurer, from the town col- 
lector, and from any other and what source : 

7. The manner in which such moneys have been ex- 
pended, and whether any, and what part remains un- 
expended, and for what cause. 

County g 30. In case the commissioners in any town shall 

wtice!*^ ^""^ not, on or before the first day of August,' in any year, 

make such report to the clerk of the county, it shall be 

his duty to give immediate notice of soch neglect to the 

clerk of such town. 

Foti^tlfe: *S 31. The commissioners neglecting to make such 

money may report withiu the limited period, shall forfeit severally, 

' ' to their town, for the use of the common schools therein, 

the sum of ten dollars ; and the share of school moneys 

apportioned to such town for the ensuing year, may, in 

the discretion of the superintendent of comnwn schools, 

be withheld, and be distributed among the other towns 

in the same county, from which the necessary reports 

shall have been received. 

(1) August inserted by § 1 of chap. 308, laws of 1835. 



COMMON SCHOOLS. 371 

^ 32, When the share of school moneys apportioned ^l^^^^l^l'^.^ 
to a town, shall thus be lost to the town, by the neglect liabie for 

^. '.. , .. -w r L. amount. 

or Its commissioners, the commissioners guilty oi such 
neglect, shall forfeit to their town the full amount, with 
interest, of the moneys so lost ; and for the payment of 
such forfeiture they shall be jointly and severally liable. 

iS 33. It shall be the duty of the supervisor of the supenisors 
town, upon notice of such loss, irom the superintendent &«. 
of common schools or county treasurer, to prosecute with- 
out delay, in the name of the town, for such forfeiture, 
and the moneys recovered, shall be distributed and paid 
by such supervisor to the several districts, parts of dis- 
tricts, or separate neighborhoods of the town, in the 
same manner as it would have been the duty ol the com- 
missioners to have distributed and paid them, if received 
from the county treasurer. 

^ 34. The commissioners in each town, shall keep a ^J^e"^^^ 
just and true account of all school moneys received and teepac- 
expended by them during the year for which they shall 
have been chosen, and shall lay the same before the 
board of auditors of tlie accounts of other town officers 
at the ajinual meeting of such board in the sanae year. 

(S 35- The commissioners of common schools in each {'"'^ •■«"^«f 
liown, shall, within fifteen days alter ttie termination of sors. 
iheir respective offices, render to their successors in of- 
fice, a just and true account, in writing, of aU school 
moneys by them respectively received, before the time of 
rendering such account, and of the manner in which 
the same shall have been appropriated and expended by 
them ; and the account so rendeied shall be delivered by 
such successors in office to the town clerk, to be filed and 
recorded in his office. 

^ 36. K, on rendering such account, any balance shall ^^^^_ 
§3e found remaining in the hands of the commissioners, 
or any of them, the same shall immediately be paid by 
him or them, to his or their successors in office, or some 
one of them. 

g 37. If such balance, or any part thereof^ shall have tedf fi b''/'*' 
been appropriated by the commissioners to any particu- paw accord- 
lar school district, part of a district, or separate neigh- ' ^ ^' 
borhood, and shall remain iri their hands for the use 
thereof, a statement of such appropriation shall be made 
*in the account so to be rendered, and the balance paid * *''* 
to such successors in office, shall be paid over by them, 
according to such appropriation. 

J 38. Every commissioner of common schools, who ^''^'^J'^f^ 



372 LAWS RELATING TO 

shall refuse or neglect to render such an account as is 
above required, or who shall refuse or neglect to pay 
over to his successors in office, any balance so found in 
his hands, or to deliver a statement of the appropriation, 
if any there be, of such balance, shall for each offence, for- 
feit the sum of one hundred dollars. 
Huccessors g 39. It shall be the duty of such successors in office, 
o [uose .. ^^ prosecute without delay, in their name of office, for 
the recovery of such forfeiture, and to distribute and pay 
the moneys recovered, in the same manner as other 
school moneys received by them. 
suii how ^ 40. Such successors in office may bring a suit in 

>roug 1 . ^j^^.^. name of office, for the recovery, with interest, of 
any unpaid balance of school moneys, that shall appear 
to have been in the hands of any previous commissioner 
on leaving his office, either by the accounts rendered by 
such commissioner, or by other sufficient proof 
^^ § 41. In case of the death of such commissioner^ 

such suit may be brought against his representatives, and 
all moneys recovered shall be applied in the same man- 
ner as if they had been paid over without suit. 
Corporation. ^42. The commissioners of common sshools in cacb 
town, shall have the powers and privileges of a corpo- 
ration, so far as to enable them to take and hold any 
property transferred to them for the use of common 
schools in such town. 
commrs^. S ^3- The town clerk, by right of office, shall be the 

sioners; clork of the Commissioners of common schools in each 
" ^' town,, and it shall be his duty, 

1 . To receive and keep all reports made to the com- 
missioners from the trustees of school districts, and all 
the books and papers belonging to the commissioners, 
and to file them in his office : 

2. To attend all meetings of the commissioners, and 
to prepare, under their direction, all their reports, esti- 
mates and apportionments of school money, and to re- 
cord the same and their other proceedings, in a book to 
be kept for that purpose : 

3. To receive all such communications as may be di- 
rected to him by the superintendent of common schools, 
and to dispose of the same in the manner directed 
therein : 

4. To transmit to the clerk of the county, all such 
reports as may be made for such clerk, by the commis- 
sioners : 

«: 473 *5. To call together the commisijioners, upon receiv- 



COMMON SCHOOLS. 373 

ing notice from the county clerk that they have not made 
their annual report, for the purpose of making such re- 
port: 

And generally to do and execute all such things as 
belong to his office, and may be required of him by the 
commissioners. 

ARTICLE FOURTH. 

Of the Inspectors of Common Schools. 

Sec. 44. Who inspectors of common schools m each town. 

45. To examine persons offering themselves as teachers. 

46. Qualifications to be required. 

47. If satisfied, to give certificate. 

48. May annul certificate after ten days' notice. 

49. May require re-examination. 

50. How efi'ect given to the annulling of a certificate. 

5L In certain cases, inspectors of two or more towns may examine. 

52. Inspectors to visit schools at least once a year. 

53. Duties at such visitation. 

f 54. Each inspector may have assigned to him certain districts. 

^ 44. The commissioners of common schools in each whoinspec- 
town, together with the other inspectors elected in their **""^ 
town, shall be the inspectors of common schools for their 
town. 

^ 45. It shall be the duty of the inspectors of com- Their duty, 
mon schools in each town, or any three of them, at a g^s." '*^*' 
meeting of the inspectors called for that purpose, to ex- 
amine all persons offering themselves, as candidates for 
teaching common schools in such town. 

^ 46. In making such examination, it shall be the j,, 
duty of the inspectors to ascertain the qualifications of 
the candidate, in respect to moral character, learning and 
ability. 

,^ 47. If the inspectors shall be satisfied in respect to ib. 
the qualifications of the candidate, they shall dehver to 
the person so examined, a certificate signed by them, in 
such form as shall be prescribed by the superintendent of 
common schools. 

^ 48. The inspectors, or any three of them, may an- j^ 
nul any such certificate given by them or their predeces- 
sors in office, when they shall think proper, giving at 
least ten days' previous notice in writing to the teacher 
holding it, and to the trustees of the district in which he 
may be employed, of their intention to annul the same. 

^ 49. The inspectors, whenever they shall deem it ib. 
necessary, may require a re-examination of all or any 
of the teachers in their towns, for the purpose of ascer- 
taining their qualifications to continue as such teachers. 

,§ 50. The annulling of a certificate shall not disquali- it,. 



J74 LAWS RELATING TO 

fy the teacher to whom it was given, until a note in writ- 
* 476 ing thereof, containing the *name of the teacher, and 
the tinie when his certificate was annnlled, shall be 
made by the inspectors, and filed in the ofiice of the clerk 
of their town. 

n>. ^ 51. Where any school district shall be composed of 

a part of two or more towns, or any school-howse shall 
stand on the division line of any two towns, the inspec- 
tors of either town may examine into and certify the 
qualifications of any teacher, offering' to teach in such 
district, in the same manner as is provided by the pre- 
ceding sections of this Article; and may also in the same 
manner annnl the certificate of such teacher. 

Mb. as to visi- ^ 52. It shall be the duty of the inspeetoi-s to visit all 

<«Mt St »oos,g^j^l^ comn;ion schools, within their town as shall be or- 
ganized according to law, at least once a year, and of- 
tener if they shall deem it necessary. 

"'*• § 53. At such visitation, the inspectors shall examine 

into the state and condition of such schools, both as re- 
spects the prc^ess of the scholars in learning, and the 
good order of the schools ; ai^d may give their advice 
and direction to the trustees and teachers of such schools 
as to the government thereof, and the course of studies^ 
to be pursued therein. 

«^ '§> 54. Eacli of the inspectoi-s, by agi-eement with, or 

direction of, the other inspectors, may be assigned to a 
certain number of school districts, which it shall be hi? 
special duty to visit and inspect. 

ARTICLE FIFTH. 

Of the Fonyiatlon of School Districts, and of the 
Choice, Duties and Powers of their Officers. 

Sec. 55. Duty of commissioners when district formed; notice to be given, 

56. Manner of serving notice. 

57. In certain cases, notice to be renewed. 
53. For not serving noti<^, forfeiture |5. 

59. When meeting called, duty of inhabitants to assemble. 

60. Qualifications of voters; fine for voting without right. 

61. Powers of meeting. 

t)2 to 65. To raise money to pHrchaso district libraries; annually tc 
make additions; who librarian; taxes how collected. 

6t>. Annual meetings, how and when to be appointed. 

67. Special meetings lw>w called, eflect of want of notice. 

6S. Amount to be raised for building, &c. school-bonse, limited. 

69. Altering sdiool districts formed from several towns. 

70 & 71. Sites of school-houses how and wlien ahered, votes how 
to be taken. 

72. Notices erf district njeetings to alter sites, to specify objects. 

73. Sale of former site on change being made; security for purchase, 

74. Money how appropriated. 

75 i^ 76. Trustees may sell former site when dianged; proceeds how 
applied. 

77. In dividing districts, proportion due i>ew district to be ascer- 
tained. 



COMMON SCHOOLS. 375 

Hec. 78. Proportion how ascertained; and deduction for debts of former 
district. 

79. Amount of such proportion, how collected and applied. 

80. Duration of office of district officers. 

81. Vacancies in such offices, how filled. 

82. Penalty for refusing to serve after appointment, and for neglect- 

ing without refusing. 

83. Persons cho.sen may resign, and in what manner. 

84. Duty of clerk of district. 

85. Duty and powers of trustees. 

86. Among whom tax to be apportioned, and upon what to be as- 

sessed. 
*87. Persons owning lands occupied by agents, considered taxable in- ^ ^j^ 
habitants. 

50. Improved land unoccupied, liable to taxation, though owner re- 

side out of district. 
89 & 90. Valuations of taxable property, how ascertained and when 
reduced. 

51. Who exempted from taxation to build a school-house. 

92. Trustees to assess district tax, and make out list thereof. 

93. When tenant may charge tax paid by him, to owner of the land. 

94. Where fuel for school is not provided by tax, who to furnish the 

same. 

95. Trustees to determine the proportion to be provided by each 

person. 
96 &97. If any person omit, trustees to furnish; how collected. 
98 to 101. Collector's warrant, and his duty under it; taxes and rate 

bills liow collected. 
102. When trustees to renew warrant; and when to collect tax by suit. 
i03. Moneys apportioned to a district if unpaid; how to be recovered 

and applied. 
104. Trustees of district to report; when and to whom. 
105 & 106. To whom report to be delivered, and what to specify ; 

not to contain paupers. 

107. Who to be deemed qualified teachers. 

108. When a district is formed of two or more towns, trustees to 

whom to report. 

109. Trustee of separate neighborhood, how chosen; when and to 

whom to report. 

110. Penalty on trustees for signing a false report. 

111. Property vested in trustees, held by them as a corporation. 

112 & 113. At expiration of office, trustees to account; balance how 
paid. 

114. Penalty for refusing, «fec. to account. 

115. Who to prosecute for same, and how applied. 

116. Remedy for recovering balance from a former trustee; who to 

sue for it. 

117. Bonds, &c. taken by trustees, to be delivered to their succes- 

sors. 

118. Fees of collector of district. 

119. To pay to trustees moneys collected, and when. 

120. When required by thera, to give bond to trustees; its conditions. 

121. If he do not execute bond, office to be vacated. 

122. If money lost by his neglect, what he shall forfeit. 

123. Who to sue for such forfeiture, and for balances remaining in his 

hands. 

124. Appeal to superintendent of common schools. 

^ 55. Whenever any school district shall be formed commis 
in any town by the commissioners of common schools, gi°e"ot*ice. 
it shall be the duty of some one or more of the commis- 
sioners, within twenty days thereafter, to prepare a no- 
tice in writing, describing such district, and appointing 
a time and place for the first district meeting, and to de- 
liver such notice to a taxable inhabitant of the district. 



renewed. 



376 LAWS RELATING TO 

Notice for ^ 56. It shall be the duty of such inhabitant to notify 

first meeting gyg,.y o([iei- inhabitant of the district, qualified to vote at 
district meetings, by reading the notice in the hearing of 
each such inhabitant, or in case of his absence from home, 
by leaving a copy thereof, or of so much thereof as re- 
lates to the time and place of such meeting, at the place 
of his abode, at least six days before the time of the 
meeting. 

When to be (<\ 57. In caso such notice shall not be given, or the in- 
habitants of a district shall refuse or neglect to assemble, 
or form a district meeting, when so notitied ; or in case 
any such district, having been formed and organized in 
pursuance of such notice, shall afterwards be dissolved, 
so that no competent authority shall exist therein, to call 
a special district meeting in the manner hereinafter pro- 
vided ; such notice shall be renewed by the commisgion- 
ers, and served in the manner above prescribed. 

Pe*aify^L *§ ^^- Evcry taxable inhabitant to whom a notice of 

not serviiiff a district meeting shall have been properly delivered for 
service, who shall refuse or neglect to serve the notice in 
the manner above in this Article enjoined, shall for eve- 
ry such offence forfeit the sum of five dollars. 

Inhabitants ^ 59. Whenever any district meeting shall be called. 

semhie° '^"^ hi the manner prescribed in the preceding sections of this 
Article, it shall be the duty of the inhabitants of the dis- 
trict, qualified to vote at district meetings, to assemble 
together at the time and place mentioned in the notice. 

^°vS."°" S 60- No person shall vote at any school district meet- 
ing, unless he shall be a freeholder in the town where 
he votes or shall have been assessed the same year in 
which he votes, or the preceding year, to pay taxes there- 
in ; or shall possess personal property over and above 
such as is exempt from execution, to the amount of fif- 
ty dollars, liable to taxation in the district ; and every 
person not so qualified, who shall vote at any such meet- 
ing, shall for each offence forfeit the sum of ten dollars. 

Powers of § 61. The inhabitants so entitled to vote, when so as- 

IweUn''. sembled in such district meeting, or when lawfully as- 
sembled at any other district meeting, shall have power, 
by a majority of the votes of those present, 

1. To appoint a moderator for the time being : 

2. To adjourn from time to time, as occasion may re- 
quire : 

3. To clioose a district clerk, three trustees, and one 
district collector, at their first meeting, and as often as 
such offices, or either of them, become vacated : 



COMMON SCHOOLS. 377 

4. To designate a site for a district, school-house: 

5. To lay such tax on the taxable inhabitants of the 
district as the meeting shall deem sufficient to purchase 
or lease a suitable site for a school-house, and to build, 
hire, or purchase such school-house, and to keep in re- 
pair and furnish the same with necessary fuel and ap- 
pendages : 

6. To repeal, alter, and modify their proceedings from 
time to time, as occasion may require. 

(5 62. The taxable inhabitants of each school district '^'" ""n'sc 'n<' 
in the state shall have power, when lawfully assembled ciiusr dis- 
at any district meeting, to lay a tax on the district, not'"*' ''^'"•'"'y- 
exceeding twenty dollars for the first year, for the pur- 
chase of a district library, consisting of such books as 
they shall in their district meeting direct, and such fur- 
ther sum as they may deem necessary for the purchase 
of a book case. The intention to propose such tax 
shall be stated in the notice required to be given for such 
meeting. ' 

^ 63. The taxable inhabitants of each school district"*'"'"''''*' 

1 II 1 1 11 additions. 

shall also have power when so assembled in any subse- 
quent year, to lay a tax not exceeding ten dollars in 
any one year, for the purpose of making additions to 
the district library.' 

^ 64. The clerk of the district, or such other person i-'hrnnan. 
as the taxable inhabitants may at their annual meeting 
designate and appoint by a majority of votes, shall be 
the hbrarian of the district, and shall have the care and 
custody of the library, under such regulations as the in- 
habitants may adopt for his government.' 

(5 65. The taxes authorized by this act to be raised, Taxes how 
shall be assessed and collected in the same manner as a 
tax for building a school-house.' 

,§66. [Sec. 62.] In each school district an annual Anmmi 
meeting shall be held at the time and place previously 
appointed ; and at the first district meeting, and at each 
annual meeting, the time and place of holding the next 
annual meeting shall be fixed. 

^ 67. [Sec. 63.] A special meeting shall be held in f^^f^^l 
each district whenever called by the trustees ; and the 
proceedings of no district meeting, annual or special, 
shall be held illegal, for want of a due notice to all the 
persons qualified to vote thereat, unless it shall appear 

(1) Laws of 1835, chap. 80. 



378 



LAWS RELATING TO 



*479 

Limitation 
tax. 



Joint meet- 
ins ot com- 
missioners. 



Sites of 
schoolhou 
ses, when 
and how 
altered. 



Votes h4W 
taken. 



Contents of 
notice. 



Sale of for- 
mer site. 



that the omission to give such notice was wilful and 
fraudulent. 

*§ 68. [Sec. 64.] No tax to be voted by a district 
°'' meeting for building, hiring or purchasing a school-house 
shall exceed the sum of four hundred dollars, unless the 
commissioners of common schools of the town in which 
the school-house is to be situated, shall certify in writ- 
ing, their opinion that a larger sum ought to be raised, 
and shall specify the sum ; in which case, a sum not 
exceeding the sum so specified, shall be raised. 

^ 69. [Sec. 65.] If the commissioners of common 
schools in any town, shall require in writing, the attend- 
ance of the commissioners of any other town or towns, 
at a joint meeting for the purpose of altering a school 
district formed from their respective towns, and a major 
part of the commissioners notified shall refuse or neglect 
to attend, the commissioners attending, by a majority of 
votes, may call a special district meeting of such district, 
for the purpose of deciding on such proposed alteration ; 
and the decision of such meeting shall be as valid as if 
made by the commissioners of all the tov^ns interested, 
but shall extend no further than to dissolve the district 
formed from such towns. 

§ 70. Whenever a school-house shall have been built 
or purchased for a district, the site of such school-house 
shall not be changed, nor the building thereon be re- 
moved, as long as the district shall remain unaltered, 
unless by the consent, in writing, of the commissioners 
of common schools, or a majority of them, of the town 
or towns within which such district shall be situated, 
stating that in their opinion such removal is necessary ; 
nor then, unless two-thirds of all those present at a spe- 
cial meeting of such district, called for that purpose, and 
qualified to vote therein, shall vote for such removal and 
in favor of such new site.^ 

^ 71. Such vote shall be taken by ayes and noes, and 
the name of each voter, with the vote that he shall give, 
shall be entered by the clerk in the records of such school 
district.' 

§ 72. Every notice of a district meeting called in pur- 
suance of this act shall state the purpose for which such 
meeting is called.' 

^ 73. Whenever the site of a school-house shall have 
been changed as herein provided, the inhabitants of the 



(1) Laws of 1831, chap. 44, and orig. § 66 repealed. 



COMMON SCHOOLS. 379 

district entitled to vote, lawfully assembled at any district 
meeting, shall have power, by a majority of the votes of 
those present, to direct the sale of the former site or lot, 
and the buildings thereon, and appurtenances, or any 
part thereof, at such price and upon such terms as they 
shall deem most advantageous to the district ; and any J^^g^pj^j. 
deed duly executed by the trustees of such district, or a 
majority of them, in pursuance of such direction, shall 
be valid and effectual to pass all the estate or interest of 
such school district in the premises intended to be con- 
veyed thereby, to the grantee named in such deed ; and py, "haJg*^"^ 
when a credit shall be directed to be given upon such imw laken. 
sale, for the consideration money, or any part thereof, 
the trustees are hereby authorized to take, in their cor- 
porate name, such security by bond and mortgage, or 
otherwise, for the payment thereof, as they shall deem 
best, and shall hold the same as a corporation, and ac- 
count therefor to their successors in office and to the dis- 
trict, in the manner they are now required by law to ac- 
count for moneys received by them ; and the trustees of 
any such district for the time being, may, in their name 
of office, sue for and recover the moneys due and unpaid 
upon any security so taken by them or their predecessors 
in office, with interests and costs.' 

§ 74. All moneys ansing from any sale made in pur- ^"^H^^l^^ 
suance of the last preceding section, shall be appropri- new site, &c. 
ated to the payment of the expenses incurred in procur- 
ing a new site and in removing or erecting a school- 
house, or either of them, so far as such application there- 
of shall be necessary.' 

.§ 75. Whenever the site of the school-house in any Trustees 
school district in this state shall have been legally chang- '°aJ. 
ed, the trustees of such district shall have power to sell 
and convey the former site, and the building or buildings 
thereon, upon such terms as they shall deem advanta- 
geous to the district.'^ 

§ 76. The proceeds arising from any sale made in ^^°?^f^^'^* 
pursuance of the preceding section, shall be appropriated appropriated 
to the payment of expenses incurred in procuring a new 
site, and in removing or erecting a building or build- 
ings thereon, so far as such appropriation shall be neces- 
sary.^ 

^ 77. [Sec. 67.] When a new district shall be formed fr!lft"{!^w"" 
from one or more districts, possessed of a school-house ; schooi- 

(1) Laws of 1831, chap. 44. (2) lb. 1835, chap. 308, § 4 and 5. 



380 



LAWS RELATING TO 



house, &c- 
liisposed of. 



Proportion 
how asi'.er- 
taiseri. 



How levied 
and applied. 



* 480 



District offi- 
cers. Te- 
iMire- 



Vaca'icies 
1k)w tilled. 



Forfeitures 



and in cases where any district from which such new 
district shall be in whole or in part formed, shall be en- 
titled to other property than its school-house, then the 
commissioners of common schools, at the time of form- 
ing- such new district, shall ascertain and determine the 
amount justly due to such new district, from any district 
out of which it may have been in whole or in part form- 
ed, as the proportion of such new district of the value of 
the school-house and other property belonging to the for- 
mer district, at the time of such division. 

§ 78. [Sec. 68.] Such proportion shall be ascertained, 
according to the taxable property of the inhabitants of 
the respective parts of such former district, at the time 
of the division, by the best evidence in the power of the 
commissioners ; and deduction shall be made therein for 
anv debts due from the former district. 

^ 79. [Sec. 69.] Such proportion, when ascertained, 
shall be levied, raised and collected, with the fees for 
collection, by the trustees of the district retaining the 
school-house or other property of the former district, upon 
the taxable inhabitants of their district in the same man- 
ner* as if the same had been authorized by a vote of 
their district for the building of a school-house; and 
when collected, shall be paid to the trustees of the new 
district, to be applied by them towards procuring a school- 
house for their district; and the moneys so paid to the 
new district shall be allowed to the credit of the inhabi- 
tants who were taken from the former district, in reduc- 
tion of any tax that may be imposed for erecting a 
school-house. 

§1 80. [Sec. 70.] The clerk, trustees, and collector of 
each school district, shall hold their respective offices un- 
til the annual lueeting of such district next following the 
time of their appointment, and until others shall be elect- 
ed in their places. 

^81. [Sec. 71.] In case any such office shall be va- 
cated by the death, refusal to serve, removal out of the 
district, or incapacity of any such officer, and the va- 
cancy shall not be supplied by a district meeting with- 
in one month thereafter, the commissioners of common 
schools of the town may appoint any person residing in 
such district to supply such vacancy. 

§ 82. [Sec. 72.] Every person duly chosen or appoint- 
ed to any such office, who, without sufficient cause, 
shall refuse to serve therein, shall forfeit the sum of five 
dollars ; and every person so chosen or appointed, and 



COMMON SCHOOLS. 381 

not having refused to accept, who shall neglect to per- 
form the duties of his office, shall forfeit the sum of ten 
dollars. 

^ 83. [Sec. 73.] Any person chosen or appointed to Resignations 
any such office, may resign the same in the manner pro- 
vided in Chapter eleventh, Title third, section thirty- 
third of this Act ; and the acceptance of such resigna- 
tion, shall be a bar to the recovery of either of the penal- 
ties mentioned in the preceding section. The justices 
accepting the resignation shall give notice thereof, to the 
cleric, or to one of the trustees of the school district, to 
which the officer resigning shall belong. 

% 84. [Sec. 74.1 It shall be the duty of the clerk of D'>'y "f (I's- 

*^i , L . J -' tncl Clerk. 

each school district, 

1. To record the proceedings of his district in a book 
to be provided for that purpose by the district, and to en- 
ter therein true copies of all reports made by the trus- 
tees of his district, to the commissioners of common 
schools : 

2. To give notice of the time and place for special dis- 
trict meetings, when the same shall be called by the 
trustees of the district, to each inhabitant of such district 
liable to pay taxes, at least five days before such meet- 
ing shall be held, in the manner prescribed in the fifty- 
sixth section of this Title : 

3. To affix a notice in writing of the time and place 
for any adjourned district meeting, when the same shall 
be adjourned for a longer time than one month, in at 

least four of the most public places of "such district, at # 48i 
least five days before the time appointed for such ad- 
journed meeting : 

4. To give the like notice of every annual district 
meeting : 

5. To keep and preserve all records, books and papers, 
Ijelonging to his office, and to deliver the same to his 
successor in office, in the manner and subject to the pe- 
nalties provided by law, in relation to the town clerk. 

§ 85. [Sec. 75.] It shall be the duty of the trustees ^^^^^o^''^""- 
of every school district, and they shall have power, 

1. To call special meetings of the inhabitants of such 
districts liable to pay taxes, whenever they shall deem 
it necessary and proper : 

2. To give notice of special, annual and adjourned 
meetings, in the manner prescribed in the last preceding 
section, if there be no clerk of the district, or he be ab- 
sent or incapable of acting : 



382 LAWS RELATING TO 

3. To make out a tax list of every district tax, voted 
by any such meeting, containing the names of all the 
taxable inhabitants residing in the district at the time of 
making out the list, and the amount of tax payable by 
each inhabitant, set opposite to his name : 

4. To annex to such tax list a warrant, directed to 
the collector of the district, for the collection of the sums 
in such list mentioned, with five cents on each dollar 
thereof, for his fees : 

5. To purchase or lease a site for the district school- 
house, as designated by a meeting of the district, and to 
build, hire or purchase, keep in repair, and furnish such 
school-house with necessary fuel and appendages, out of 
the funds collected and paid to them for such purposes : 

6 . To have the custody and safe keeping of the district 
school-house : 

7. To contract with and employ all teachers in the 
district : 

8. To pay the wages of such teachers when qualified,, 
out of the moneys which shall come into their hands 
from the commissioners of common schools, so far as 
such moneys shall be sufficient for that purpose; and to 
collect the residue of such wages, excepting such sums 
as may have been collected by the teachers, from all per- 
sons liable therefor : 

9. To divide the public moneys received by them, 
whenever authorized by a vote of their district, into not 
exceeding four portions for each year; to assign and ap- 
ply one of such portions to each quarter or term during 
which a school shall be kept in such district, for the pay- 
ment of the teacher's wages, during such quarter or 
term ; and to collect the residue of such wages, not paid 
by the proportion of public money allotted for that pur- 
pose, from the person liable therefor, as above provided : 

*48a *io. To exempt from the payment of the wages of 
teachers, such indigent persons within the district, as 
they shall think proper : 

11. To certify such exemptions, and deliver the cer- 
tificate thereof to the clerk of the district, to be kept on 
file in his office : 

12. To ascertain by examination of the school hsts 
kept by such teachers, the number of days for which 
each person not so exempted, shall be liable to pay for 
instruction, and the amount payable by each person : 

13. To make out a rate bill containing the name of 
each person so hable, and the amount for which he is 



COMMON SCHOOLS. 383 

liaWe, adding thereto five cents on each dollar of the 
sum due from him, for collector's fees ; and to annex 
thereto a warrant for the collection thereof: 

14. To deliver such rate bill, with the warrant annex- 
ed, to the collector of the district, who shall execute the 
same in like manner with other warrants directed to him, 
by them. 

^ 86. rSec. 76.1 In making out a tax list, the trustees Taxes how 

1 11 ^ • 1 11 1 1 1 • 1 . • apportioned. 

shall apportion the tax on all the taxable inhabitants 
within the district, according to the valuations of the tax- 
able property which shall be owned or possessed by them, 
at the time of making out the list within the district, or 
which being intersected by the boundaries of the district, 
shall be so owned or possessed by tlieni, partly in such 
district and partly in any adjoining district ; but where 
taxable property shall be owned by one inhabitant and 
possessed by another, only one of them shall be taxed 
therefor. 

^ 87. [Sec. 77.] Every person owning or holding any ib. 
real property within any school district, who shall im- 
prove and occupy the same by his agent or servant, 
shall, in respect to the liability of such property to taxa- 
tion, be considered a taxable inhabitant of such distiict, 
in the same manner as if he actually resided therein. 

§ 88. [Sec. 78.] If there shall be any real property ib. 
within a district, cultivated and improved, but not occu- 
pied b}^ a tenant, or agent, and the owner of which shall 
not reside within the district, nor be liable to be taxed 
for the same in an adjoining district, such owner shall 
be taxable therefor, in the same manner as if he were 
an inhabitant of the district ; but no portion of such pro- 
perty, but such as shall be actually cleared and cultivat- 
ed, shall be included in such taxation. 

g 89. [Sec. 79.] The valuations of taxable property Jf^J^^^Jf'J'r. 
shall be ascertained, as far as possible, from the last as- tained. 
sessment roll of the town ; and no person shall be enti- 
tled to any reduction in the valuation of such property, 
as so ascertained, unless he shall give notice of his claim 
to such reduction, to the trustees of the district, before 
the tax list shall be made out. 

*^ 90. [Sec. 80.] In every case where such reduction * 483 
shall be duly claimed, and in every case where the va- how ascer- 
luation of taxable property cannot be ascertained from """''^' 
the last assessment roll of the town, the trustees shall 
ascertain the true value of the property to be taxed, from 
the best evidence in their power, giving notice to the per- 



384 



LAWS RELATING TO 



Exemption 
in certain 

cases. 



Time of ma- 
king tax list. 



Remedy of 
tenant 
against own- 



Fuel liow 
provided. 



Proportion 
how deter- 
mined. 



VVlien .trus- 
tees to fur- 
nish, and 
charge de- 
linquent. 



sons interested, and proceeding in the same manner as 
the town assessors are required by law to proceed, in the 
valuations of taxable property. 

§ 91. [Sec. 81.] Every taxable inhabitant of a dis- 
trict, who shall have been, within four years, set off from 
any other district, by the commissioners of common 
schools, without his consent, and shall, within that pe- 
riod, have actually paid in such other district, under a 
lawful assessment (herein, a district tax for building a 
school-house, shall be exempted by the trustees of the 
district where he shall reside, from the payment of any 
tax for building a school-house therein. 

§ 92. [Sec. 82.] Every district tax shall be assessed, 
and the tax list thereof be made out by the trustees, 
within one month after the district meeting in which the 
tax shall have been voted. 

^ 93. [Sec. 83.] Where any district tax, for the pur- 
pose of purchasing a site for a school-house, or for pur- 
chasing, or building, keeping in repair, or furnishing 
such school-house with necessary fuel and appendages, 
shall be lawfully assessed and paid by any person, on 
account of any real property, whereof he is only tenant 
at will, or for three years, or for a less period of time, 
such tenant may charge the owner of such real estate 
with the amount of the tax so paid by him, unless some 
agreement to the contrary shall have been made by such 
tenant. 

^ 94. [Sec. 84.] Where the necessary fuel for the 
school of any district shall not be provided, by means of 
a tax on the inhabitants of the district, it shall be the 
duty of every person sending a child to the school, to 
provide his just proportion of such fuel. 

§, 95. [Sec. 85.] The proportion of fuel which every 
person sending children to the school, shall be liable to 
provide, shall be determined by the trustees of the dis- 
trict, according to the number of children sent by each; 
but such indigent persons as in the judgment of the trus- 
tees, shall be unable to provide the same, shall be ex- 
empted from such liability. 

§ 96. [Sec. 86.] If any person liable to provide such 
fuel, shall omit to provide the same, on notice from any 
one of such trustees, it shall be the duty of the trustees 
to furnish such fuel, and to charge the person so in de- 
fault the value of, or amount paid for, the fuel furnish- 
ed. 

^ 97. [Sec. 87.] Such value or amount may be added 



COMMON SCHOOLS. 385 

to the rate bill of the moneys due for instruction, and 
may be collected therewith, and in *the same manner ; * 484 
or the trustees may sue for and recover the same, in their 
own names, with costs of suit. 

^ 98. [Sec. 88.] Tlte warrant annexed to any tax warranf. 
list or rate bill, shall be under the hands and seals of 
the trustees, or a majority of (hem, and shall command 
the collector to collect from every person in such tax list 
or rate bill named, the sum therein set opposite to his 
name ; and in case any inhabitant shall not pay such 
sum on demand, to levy the same of his goods and chat- 
tels, together with his fees, and to make a return of such 
warrant within thirty days after the delivery thereof.' 

,§99. The warrant annexed to any tax list for tlieTax<br 
collection of a district tax for erecting or repairing any school"^' '^ 
school-house, shall command the collector, in case any }^"^j' '^"'*' 
person named in such list shall not pay the sum therein 
set opposite to his name on demand, to levy the same of 
his goods and chattels in the same manner as on war- 
rants issued by the board of supervisors to the collectors ^^.^^ y^ ^,.^^^ 
of towns; and such part of the eighty-eighth section of i. Title's, 
Article five of the aforesaid Title as is repugnant there- ** "' 
to, is hereby repealed.' 

^ 100. All taxes directed to be raised by the act here- aii taxes ic- 
by amended, shall be collected in the manner prescribed ^i'lann",-!*^""' 
in the second section of the act entitled "An act to amend 
the Revised Statutes relating to common schools," pass- 
ed April 2lst, 1831.=^ [See section 99, above.] 

^ 101. The warrants issued by the trustees of school (Rate ijIMs 
districts for the collection of rate ImIIs, shall have the like ^^^^ "o'lft''- 
force and effect as warrants issued by the boards of su- 
pervisors to the collectors of taxes in towns ; and the dis- 
trict collectors are hereby authorized to collect the amount 
due from any person or persons in their respective dis- 
tricts, in the same manner that the collectors are autho- 
rized to collect town and county charges. Those parts 
of the Revised Statutes which are inconsistent with the 
provisions of this act, are hereby repealed.^ 

l^ 102. [Sec. 89.] If the sum or sums of money, pay- Trustees 
able by any person named in such tax list or rate bill, JTr^Le^"**' 
shall not be paid by him, or collected by such warrant ""i"*^'"' 
within the time therein Hmited, it shaO and may be law- 
ful for the trustees to renew such warrant, in respect to 

(1) Laws of 1831, chap. 206, $ 2. "An art to amend the Revised Sta- 
tutes relating to common schools," passed April 21, 1831. (2) Laws of 
J832, chap. 317, " An act to amend the act relating to common schools. ' 
(3) Laws of 1835, chap. 308, ^ 3. 

25 



386 LAWS RELATING iO 

such delinquent person; or in case such person shall not 
reside within their district, at the time of making out a 
tax list or rate billy or shall not reside therein at the ex- 
piration of such warrant, and no goods or chattels can 
be found therein whereon to levy the same; the trustees 
may sue for and recover the samcj in their name of office. 
^''■o^teding g 103. [Sec. 90.] If the moneys apportioned to a dis- 
missioneis trict by the commissioners of common schools, shall not 
monl"-^ have been paid, it shall be tlie duty of the trustees there- 
of, to bring 3 suit for the recovery of the same, with in- 
terest, agaiti&t the commissioner in whose hands the 
same shall be, or to pursue such other remedy for the 
recovery thei-eof, as is or shall be given by law } and the 
moneys, when recovered, shall be applied by them in 
the same manner as if they bad been paid without suit. 
Annual re- ^ 104. [Sec. 91.] The trustces of each school district 
u°cs.° *"^ shall, after the first day of January, in every year, and 
on or before the first day of March thereafter, make and 
transmit a report, in writing, to the commissioners of com- 
mon schools for such town, dated on the first day of 
January, in the year in which it shall be transmitted. 
How jsiaik^. ^ 105. [Sec. 92.] Every such report signed and cer- 
tified by a majority of the trustees making it, shall be 
delivered to the town clerk, and shall specify, 
Its contents. 1. The wliolo time any school has been kept in 
their district during the year ending on the day pievious 
to the date of such report, and distinguishing what por- 
tion of the time such school has been kept by qualified 
teachers : 

2. The amount of moneys received from the commis- 
sioners of common schools, during such year, and the 
manner in which such moneys have been expended: 
* 485 *3. The number of children taught in the district dur- 
ing such year : 

4. The number of children residing in the district on 
the last day of December, previous to the making of 
such report, over the age of five yeare, and under six- 
teen years of age, (except Indian children otherwise pro- 
vided for by law,) and the names of the parents or other 
persons with whom such children shall respectively re- 
side, and the number of children residing with each. 
Paupers not ^ 106. It shall uot be lawful for the trustees of any 
ej^*^^""^ school district to include, in their annual returns, the 
names of any children who are supported at a county 
poor-house.* 



(1) Laws of 1831, chap. 277, § 6. 



COMMON SCHOOLS, 387 

§ 107. [Sec. 93.] No teacher shall be deemed a qualifi- ^l^l^^^ 
ed teacher, within the meaning of this Title, who shall 
not have received, and shall not then hold, a certificate 
of qualification, dated within one year, from the in- 
spectors of common schools for the town in which he 
shall be employed. 

,§ 108. [Sec. 94.] Where a school district is formed District 
out of two or more adjoining towns, it shall be the duty tw^towns,"' 
of the trustees of such district, to make and transmit ap°^'J'° ''*'■ 
report to the commissioners of common schools, for each 
of the towns out of which such district shall be formed, 
within the same time, and in the same manner, as is 
required in sections ninety-one and niuety-two of this 
Title ; distinguishing the number of children over the 
age of five and under sixteen years, residing in each 
part of a district which shall be in a diflferent town from 
the other parts, and the numljer of children taught, and 
the amount of school moneys received for each part of 
the district. 

§ 109. [Sec. 95.] Where any neighborhood shall be ^^P^"^^^. 
set off by itself, the iniiabitants of such separate neigh- hoods, how 
borhood shall annually meet together and choose one °''''p^'^- 
trustee ; whose duty it shall be, every year, within the 
time limited for making district reports, to make and trans- 
mit a report in writing, bearing date on the first day of 
January, in the year in which it shall be transmitted, to 
the commissioners of common schools of the town from 
which such neighborhood shall be set off, specifying the 
number of children over the age of five and under six- 
teen years, residing in such neighborhood, the amount 
of moneys received from the commissioners since the 
date of his last report, and the manner in which the 
same have been expended. 

^110. [Sec. 96. J Every trustee of a school district, Penalty for- 
or separate neighborhood, who shall sign a false report 
to the commissioners of common schools of his town, 
with the intent of causing such commissioners to ap- 
jwrtion and pay to his district or neighborhood, a larger 
sum than its just proportion of the school moneys of the 
town, shall, for each offence, forfeit the sum of twenty- 
five dollars, and shall also be deemed guilty of a mis- 
demeanor. 

§ 111. [Sec. 97.] All property now vested in the trus- rropenyof 
tees of any school district, for the use of schools in the koVheid. 
district, or which may be hereafter 'transferred to such * *86 



388 



LAWS RELATING TO 



Trastees to 
account. 



Balanco paid 
w succes- 
sors. 



Forfeiture 
lor neglect, 



How prose- 
cuted. 



Remedy 
against for- 
mer trustees 



Bonds to be 
delivered. 



Fees of col- 
lector. 



Hi^j duty in 

collecting 

taxes. 



To give bond 



trustees for that purpose, shall be held by them as a cor- 
poration. 

§ 112. [Sec. 98.] The trustees of each school district 
shall, on the expiration of their offices, render to their 
successors in office, and to the district, at a district meet- 
ing, a just and true account, in writing, of all moneys 
received by them respectively, for the use of their dis- 
trict, and of the manner in which the same shall have 
been expended ; which account shall be delivered to the 
district clerk, and be filed by him. 

§ 113. [Sec. 99.] Any balance of such moneys, which 
shall appear from such account to remain in the hands 
of the trustees or either of them, at the time of rendering 
the account, shall immediately be paid to some one or 
more of their successors in office. 

^ 114. [Sec. 100.] Every trustee who shall refuse or 
neglect to render such account, or to pay over any ba- 
lance so found in his hands, shall for each offence, for- 
feit the sum of twenty-five dollars. 

^ 115. [Sec. 101.] It shall be the duty of his succes- 
sors in office to prosecute without delay, in their name 
of office, for the recovery of such forfeiture ; and the 
moneys recovered shall be applied by them to the use 
and benefit of their district schools. 

^ 116. [Sec. 102.] Such successors shall also have the 
same remedies for the recovery of any unpaid balance, 
in the hands of a former trustee, or his representatives, 
as are given to the commissioners of common schools 
against a former commissioner and his representatives ; 
and the moneys recovered shall be applied by them to 
the use of their district, in the same manner as if they 
had been paid without suit. 

^ 117. [Sec. 103,] All bonds or securities, taken by 
the trustees from the collector of their district, shall on 
the expiration of their office, be delivered over by them 
to their successors in office. 

^ 118. [Sec. 104.] The collector of each school dis- 
trict shall be allowed five cents on every dollar collected 
and paid over by him. 

§ 119. [Sec. 105.] It shall be his duty to collect and 
pay over to the trustees of his district, some or one of 
them, all moneys which he shall be required by war- 
rant to collect, within the time limited in such warrant 
for its return, and to take the receipt of such trustee or 
trustees for such payment. 

§ 120. [Sec. 106.] Every collector of a school district 



COMMON SCHOOLS. 389 

shall, before receiving ariy warrant for the collection of 
moneys, execute a bond to the trustees of his district 
when required by them, in their corporate name, with 
one or more sureties, to be approved by one or more of 
the trustees, in double the amount of taxes to be collect- 
ed, conditioned for the due and faithful execution of the 
duties of his office. 

*§ 121. [Sec. 107.] If any collector shall not execute if**«J^ 
such bond within the time allowed him by the trustees to proceed, 
for that purpose, which shall not be less than ten days, 
his office shall be vacated ; and the trustees may appoint 
any other person residing in the district, as collector in 
his place. 

^ 122. [Sec. 108.J If by the neglect of the collector, Forfeiture 
any moneys shall be lost to his district, which might ^°^ neglect. 
have been collected within the time limited in the war- 
rant delivered to him for their collection, he shall forfeit 
to his district the full amount of the moneys thus lost, 
and shall account for and pay over the same to the trus- 
tees of his district, in the same manner as if they had 
been collected. 

^ 123. [Sec. 109.] For the recovery of all forfeitures, Trustee* 
and of balances in the hands of a collector which he "^^ ^"^ 
shall have neglected to pay over, the trustees of the dis- 
trict may sue in their name of office, and shall be en- 
titled to recover the same with interest and costs ; and 
the moneys recovered shall be applied by them in the 
same manner as if paid without suit. 

S 124. Any person conceiving himself aggrieved in Appeals to 

^ r ^ J • • J °^ suncrinten- 

consequence of any decision mad€, dent of com- 

1. By any school district meeting : mon schools 

2. By the commissioners of common schools, in the 
forming or altering, or in refusing to form or alter any 
school district, or in refusing to pay any school moneys 
to any such district : 

3. By the trustees of any district, in paying any teach- 
er, or refusing to pay him, or in refusing to admit any 
scholar gratuitously into any school: 

4. Or concerning any other matter under the present 
Title : 

May appeal to the superintendent of common schools, 
whose decision thereon shall be final. ^ 

(1; Amendatory act of 1830, chap. 320, § 7, by which ihe above $ is sub- 
stituted for the orig. sees. 110 and 111. 



390 



LA\vrS IlELATING TO 



To transmit 
school re- 
ports. 



«4S8 



Penalty for 
neglect. 



How prose- 
cuted and 
applif:d. 



Notice to 
town clerk. 



ARTICLE SIXTH. 

Of certain duties of the County Clerk. 

Sec. 125. County clerk to report to the superintendent of commoli schools 
what, and when. 

126. Forfeiture for neglecting it. 

127. Who to prosecute for it, and where paid when recovered. 

128. Duty of county clerk when commissioners do not report. 

,^ 125. [Sec. 112.] It shall be the duty of each comity 
clerk, between the first day of August' and the first day 
of October/ in every year, to make and transmit to the 
superintendent of common schools, a report in writing, 
containing the whole number of tow^ns in his county^ 
distinguishing the towns from which the necessary re- 
ports have been made *to him by the commissioners of 
common schools, and containing a certified copy of all 
such reports. 

^ 126. [Sec. 113.1 Every clerk who shall refuse or 
neglect to make such report, within the period so limit- 
ed, shall, for each offence, forfeit the sum of one hun- 
dred dollars to the use of the school fund of the state. 

% 127. [Sec. 114.] It shall be the duty of the super- 
intendent of common schools, to prosecute without de- 
lay, in his name of office, for such forfeiture, and to pay 
the moneys recovered, into the treasury of the state, to 
the credit of the school fund. 

g 128. [Sec. 115.] It shall be the duty of each county 
clerk, immediately after the first day of August^ in eve- 
ry year, in case the commissioners of common schools 
of any town in his county shall have neglected to make 
to him their annual report, to give notice of such neglect 
to the clerk of the town, who shall immediately assem- 
ble such commissioners for the purpose of making their 
report. 



* 489 
Clerk of N. 
York. 



Local Regulations respecting Commoji Schools. 
NEW-YORK. 

Art. 7, Title 2. Chap. 15, Part 1, R. S. 

*§ 129. [Sec. 116.] Whenever the clerk of the city 
and county of New-York, shall receive notice from the 
superintendent of common schools, of the amount of the 
moneys apportioned to the city of New- York, for the 
support and encouragement of common schools therein, 



(1) Laws of 1835, chap. 308, § 2. 
by chap. 308, laws of 1835, § 2. 



(2) August substituted for October, 



COMMON SCHOOLS. 391 

he shall immediately lay the same before the corporation 
of the city, in common council convened.^ 

^ 130. [Sec. 117.] The corporation shall annually corporation 
raise and collect, by tax upon the inhabitants of the city, ircy!"*^ '""' 
a sum of money equal to the sum specified in such no- 
tice, at the same time, and in the same manner as the 
contingent charges of the city are levied and collected.' 

^131. The corporation of the city of New- York, are corporaiioii 
hereby authorized in addition to the amount now requir- raise addi*- 
ed to be raised for the support of schools in the said city, "°'''''' •^"'"• 
annually to raise and collect by tax upon the inhabi- 
tants thereof, a sum of money equal to one-eightieth of 
one per cent of the value of the real and personal pro- 
^)erty in the said city, or liable to be assessed therein, to 
be applied exclusively to the purposes of common schools 
in the said city.'^ 

^ 132. The corporation of the city of New- York are n>. 
hereby authorized, in addition to the amount now requir- 
ed to be raised for the support of schools in the said city, 
annually to raise and collect by tax upon the inhabi- 
tants thereof, a sum of money, equal to three-eightieths 
of one per cent of the value of the real and personal pro- 
perty in the said city, or liable to be assessed therein, to 
be applied exclusively to the purposes of common schools 
in the said city.^ .» 

,§ 133. [Sec. 118.] The corporation shall, on or be- ^vhere d.!. 
fore the tirst day of May in every year, direct tiiat a sum '"" ^' ' 
of money equal to the amount last received by the cham- 
berlain from the common school fund, be deposited by 
him, together with the sum so received from the school 
fimd, in one of the incorporated banks in the city, to the 
credit of the commissioners of school money for the city, 
and subject only to the drafts of the commissioners, 
drawn payable to the order of the treasurers of the re- 
spective societies or schools entitled thereto, or to some 
person duly authorized by the trustees of such societies 
or schools.^ 

;5 134, [Sec. 119.] The corporation shall, once in couiuiisBion- 
every three years, after the month of January in the year panted! t'e. 
one thousand eight hundred and twenty-five, appoint 
from the inhabitants of the city, one from each ward, 

(1) Laws of 1S24, p. 337, § 1 and 2. (2) lb. 1829, chap. 265. (3) lb. 
1831, chap. 119. By both of the acts of 1829 and 1831, from which the 
above sections 131 and 132 are taken, it is provided that the several origi- 
nal sections of tlus Article (7th) from the 117th to the 127th both inclusive, 
shall apply lo the moneys by the said acts authorized to be raised. (4) lb. 
1824, p. 337, § 1 and 2. 



392 LAWS RELATING TO 

to be commissioners of school money, who shall hold 
their offices for three years, and until others are appoint- 
ed in their places ; and who, before they enter upon the 
duties thereof, shall take the oath of office prescribed in 
the constitution of this state, ^ 

vacatscies^ § 135. [Scc. 120.) All vacaucies occurring in the of- 
fice of commissioner,, shall be supplied by the corpora- 
tion ; and each person appointed to fill a vacancy, shall 
hold his office for the i^esidue of the term foi- which his 
predecessor was appointed .'^ 

Who ineiigt. ^ 135. [Sec. 121.] No trustee or other officer of any 
society or school, which shall be entitled to receive a 
share of the school moneys, shall be appointed a com- 
missioner of school moneys.'^ 
* 490- *(5 137. [Sec. 122.1 The corporation shall, once at 

Moneys how t*^.,"- ^ ■,. ^ ■, . , 

distrii>uted. icast in three years, by ordniance, designate the socie- 
ties or schools which shall be entitled to receive a share 
of the school moneys,, and prescribe the rules and restric- 
tions under which such moneys shall be received by such 
societies or schools respectively. Such ordinance shall 
be published in two or more of the public newspapers of 
the city.^ 
witcntru.s- ^ 138. [Sec. 123.] The tnistees of every society or 
port; "con school thus designated, shall, on or before the fifteenth 
port "^ ^^' ^^y of May in every year, make a report in writing,, 
under their corporate seal, and signed by their presiding 
officer and secretary, to the commissioners of school mo- 
ney ; which report shall state,. 

1. The average number of scholars over four and un- 
der sixteen years of age, which shall have been taught,. 
free of expense to such scholars, in their school during 
the year preceding the firet of May ; which number 
shall be ascertained by adding to the number of children. 
on register at the commencement of each quarter, the 
number admitted during that quarter, and the total shall 
be considered the average for that quarter : 

2. The average number that has actually attended 
such schools during the year, to be ascertained by the 
teachers keeping an exact account of the number of 
scholars present every school time, or half day ; which 
being added together, and divided by the whole number 
of school times in the year, shall be considered the ave- 
rage of attending scholars ; which average shall be sworn 
or affirmed to by the teachers : 

(I) Laws of 1824, page 337, § 3; laws ofl826, p. 93. (2) lb. 1824, p. 
338, §3. (3) lb. §4. 



COMMON SCHOOLS. 393 

3. The times during wiiich such schools have been 
kept open during the year : 

4. The amount of moneys last received from the com- 
missioners of school money, and the purposes for, and 
the manner in which the same shall have been expend- 
ed : 

5. A particular account of the state of the schools un- 
der their care, and of the property and affairs of such 
school or society.' 

§ 139. [Sec. 124.] It shall be the duty of the commis- Duties of 
sioners of school money, sk)neia 

1. To call for such reports, by advertisements in Uvo 
or more of the public newspapers printed in the city of 
New- York, for at least two weeks preceding the fifteenth 
day of May in every year : 

2. To apportion and pay, on or before the first day of 
June in every year^ the amount of money deposited to 
their credit, to the several societies or schools which shall 
be designated by the ordinance of the corporation as en- 
titled to receive a share thereof, and who shall have com- 
plied with the requisitions of this Article : 

3. To visit and examine the societies and schools re- 
ceiving such moneys, twice at least in every year, and 
to examine their registers and other books ; and to re- 
quire such other proof, on oath or otherwise,* as they ^ 491 
may think proper, relating to the subject matter of any 
report made by the trustees of such societies and schools, 

as to the number of scholars, and the appropriation of 
moneys received by them, and as to all other matters 
connected with the interests of said schools in such city : 

4. To make a report to the corporation and to the su- 
jjerintendent of common schools, on or before the first 
day of December in every year, comprising all the mat- 
ters contained in the reports oif the respective societies 
and schools, for the year next preceding the first day of 
May in the same year, and such other matters as they 
may deem necessary to promote the interests of said 
schools in the city of New- York : 

5. To cause a copy of such report to be filed at the 
same time, in the clerk's office of the city and county.^ 

.5 140. [Sec. 125.] The apportionment of school mo-Apponioi, 
neys shall be made to each school according to the ave- ma"'^"" 
rage number of children over the age of four and under 
sixteen years, who shall have actually attended such 
school during the preceding year ; but no school shall be 

(1) Laws of 1824, p. 338, § 5. (2) lb. 6, 7 and 8. 



394 LAWS RELATING TO 

entitled to a portion of such moneys, that has not been 
kept open at least nine months during the year. 
When with- g 14 J.. [Sec. 126.] Every such society or school in 
'"^'''* the city of New- York, which shall neglect, when so re- 

quired by the commissioners, to produce satisfactory proof 
before the first day of June in any year, relating to the 
subject matter of any report made Ijy its trustees, shall 
forfeit its share of school moneys for that year ; and such 
share shall remain in the hands of the commissioners, 
to be, distributed by them as a part of the school moneys 
of the succeeding year.' 
Appeal. ^ 142. [Sec. 127.] Every such society or school con- 

sidering itself aggrieved by any decision of the commis- 
sioners of school money, may appeal therefiom to the 
superintendent of common schools, whose decision there- 
on shall be final. ^ 
Money to be ,§ 143. The Commissioners of school money for the 
lu'wi^-'^'"^ city of New- York are hereby authorized and directed to 
school at pay to the public school society of New- York the sum of 
ai.nshousc. ^^^^ tliousaiid scveu hundred and fifty-eight dollars and 
eighty-six cents, or such other sum as may have been 
retained b}^ them in the payment or distribution of school 
moneys, on the ground that the school connected with 
the alms-house of the said city, and known as public 
school No. six, was beyond the limits of the county of 
New-York.^ 
To share ill ,^144. The said alms-house school shall be entitled 
school mo jQ j^g shaie of scliool moneys in any apportionment there- 
of hereafter to be made by the said commissioners." 
riust.'csto i? 145. The trustees of the said public school society 
o'ffuf''^'^"'^ of New- York are hereby authorized to take charge and 
housu school superintend the management of the said alms-house 

school, as one of the public schools of the said city.^ 
iiicidenHi ^ 146. The common council of the city and county 
..vpense&of ^f NeAV-Yorlc, are hereby authorized to pay out of the 
special school tax money raised for the support of com- 
mon schools in the same, any sum not exceeding five 
lumdred dollars in any one year, to the commissioners 
of school money in said city and county, for the inci- 
dental expenses attending their duty as commissioners, 
in visiting the schools entitled to a portion of the moneys 
raised by said tax.^ 



i!oinrnis- 
mor.- 



{\) Laws of 1824, p. 339. § 7. (2) Laws of 1835, chap. G4. (3) Laxvf 
of 1834, chap. 35. 



COMMON SCHOOLS. 395 

TROY. 

Art. 7, title 2, chap. 15, part 1 R. S. 

5 147. [Sec. 128.] The four first wards of the city of Troy; school 
Troy shall be and remain one school district, and shall "" "^"^^ '"' 
not be subject to alteration b)^ the commissioners of com- 
mon schools for that city.' 

§ 148. [Sec. 129.1 The common council of the city insp.cior* 
shall annually, on the third Tuesday of May, appoint""'"'"'"^"" 
not exceeding thirteen trustees, to manage the concerns 
of the school in such district, and to perform the duties 
of inspectors and trustees thereof, as required by law and 
the ordinances of the common council.' 

,5 149. [Sec. 130.1 Every trustee, before he shall en- Oath. 
ter on the duties of his office, shall take and subscribe 
an oath or affirmation, in the form prescribed* in (he * 492 
constitution of the state, before the mayor or recorder, or 
one of the aldermen or justices of the city, and shall file 
the same in the office of the clerk of the city.' 

§ 150. [Sec. 131.] Every person appointed a trustee, Pcnaiiy for 
who shall refuse or neglect to file such oath or affirma- "*'^'^'^'' 
tion within fifteen days after he shall have received no- 
tice of his appointment, shall forfeit the sum of ten dol- 
lars, to be recovered in the manner prescribed in the 
'• Act to incorporate the city of Troy," passed April 12th, 
1816.' 

§151. [Sec. 132.] The commissioners of common school rnn- 
schools for the city shall pay to the chamberlain of said pa^j!' '"*** 
city, such a portion of the school moneys to be distri- 
buted by them, as the district above designated may be 
entitled to receive, and the same shall be paid over by 
the chamberlain to the trustees of such district. ' 

§ 152. [Sec. 133.] The common council of the city schooi- 
shall have power to raise a sum not exceeding five hun- repairedr^ 
dred dollars annuall}'^, by tax on the inhabitants of such ^ 
district, for repairing the school-house therein, and de- 
fraying the expenses of the school ; which tax shall be 
assessed and collected as the other taxes of the city are 
assessed and collected, and when collected, shall be paid 
to the chamberlain of the city.' 

5 153. [Sec. 134.] In the execution of the powers AUiennrn ot 
which, by the preceding sections, are vested in the com- wards'Jio'u- 
mon council of the city, the aldermen of the fifth and ^'""'• 
sixth wards shall not be considered as members of such 
council, nor be permitted to vote on any question that 

(I) Laws of 1816, p. 147, § 40 to 46. 



396 



LAWS RELATING TO 



graduated. 



tJommis- 
sioners and 
inspectors. 



Powers at' 
common 
council to 
set off diS' 
tricts. 



may arise therein, touching the concerns of such district 
or its school.^ 
Tuition to be ^ 154, [Scc. 135,] The trustees of such school shall 
have power to exempt from the payment of tuition mo- 
ney and other charges, all such scholars and the persons 
sending them to school, as they shall judge unable to 
bear the charge thereof; and to fix the sum which each 
person liable to pay for the same shall be compelled to 
pay, having regard to the ability of the person so liable; 
and to appoint a collector to collect such sums from the 
persons liable to pay the same.^ 

§ 155. [Sec. 136.] There shall annually be elected, 
at the time and in the manner the other officers of the 
how chosen, cjjy ajg choseu, oue commissioner of common schools in 
each of the wards of the city of Troy; and in each of 
the fifth and sixth wards, three irispectors of common 
schools for such wards shall be chosen, at the same time 
and in the same manner.^ 

^ 156. The mayor, recorder^ aldermen and common- 
alty may, by resolution to be entered in their minutes, 
set off and detach from the first school district of said 
city, as now established by law, all such parts of the 
first and second wards of said city, as they may deem 
expedient, and annex such part and portion of the said 
first and second wards so set off to the fifth ward of said 
city, for the purpose of forming a school district to be 
composed of that part of the first and second wards of 
said city so to be set off, and a portion of the fifth ward 
of said city; and whenever such district shall be set off, 
it shall be the duty of the commissioners of common 
schools of the said city to organize a school district, to 
be composed of such part of the said first school district 
so set off" as the eommissionere of common schools shall 
deem expedient; and the school-house now erected near 
the east boundary of the said second ward shall be, con- 
tinue and remain the district school-house of the said 
school district so to be formed ; and the said district shall 
possess all the rights and privileges, and be subject to 
the same liabilities as the other school districts formed in 
the fifth and sixth wards of the said city.^ 

^ 157. It shall be lawful for the mayor, recorder, al- 
dermen and commonalty to establish one or more schools 
in the first school district, in addition to the school alrea- 
dy established by law in the said first school district, and 
to purchase the necessary land, and to erect school-hou- 



To I'sfablisli 
schools in 
the first dis- 
triri. 



(1) Laws of 1816, p. 147, ^ 40 to 4fj. ( ;) Laws of 1834, chap. 296, § 15, 



COMMON SCHOOLS. 397 

ses thereon ; and when such school-houses shall be erect- 
ed, and schools established therein, the same shall be 
under the control and supervision of the common couri- 
cil of said city; and the trustees to be annually appoint- 
ed by the common council of said city for school district 
number one shall be trustees of the said additional 
schools, and shall possess all the powers in relation to 
such additional schools as they now possess in relation 
to the school established in the said first school district ; 
and when such additional schools shall be established, it 
shall be the duty of the said trustees, under the direction 
of the common council, to apportion the common school 
moneys allotted to the first school district, among the 
several schools in proportion, as nearly as may be, to 
the number of scholars instructed in each of the said 
schools, or in such other manner as shall be just and 
equal.' 

^ 158. For the purpose of carrying the provisions of Taxes for 
the next preceding section of this act into effect, the neys. 
mayor, recorder, aldermen and commonalty may levy 
and collect, by tax upon the estates, real and personal, 
of the freeholders and inhabitants and taxable property 
in the first, second, third and fourth wards, in the same 
manner that other taxes are levied and collected, a sum 
of money not exceeding two thousand dollars in anyone 
year ; or the said mayor, recorder, aldermen and com- 
monalty may defray the necessary expenses thereof from • 
the general funds of said city.' 

HUDSON. 

Art. 7, title 2, chap. 15, pnrt 1 R. S. 

^ 159. [Sec. 137.] The amoimt of moneys allowed Hudson ; 
to the city of Hudson by the superintendent of common neys°how 
schools, shall be apportioned by the treasurer of the |['p[°p'"'" 
county of Columbia, between " The Hudson Lancaster 
School Society," and such common school districts and 
parts of districts as now are or may hereafter be organiz- 
ed without the bounds of the compact part of the city, 
in a ratio proportioned to the *nuinber of children over #493 
the age of five and under sixteen years, within such 
compact part, and the number of such children in such 
districts and parts of districts respectively, without such 
compact part.'^ 

^ 160. [Sec. 138.1 The treasurer of the county ofTrcasurerto 

ty L J ■' pay moneys. 

(1) Laws of 1834, chap. 296, $ 16 and 17. (2) Laws of 1826, p. 92; 
1817, p. 324, § 7. 



398 LAWS RELATING TO 

Columbia shall pay the amount thus apportioned to the 
Hudson Lancaster School to its treasurer, and the amount 
thus apportioned to such school districts and parts of dis- 
tricts to the commissioners of common schools for the 
city of Hudson.^ 
How applied ^ 161. [Sec. 139.] The amount thus paid to the Hud- 
san Lancaster School Society, shall be applied by the 
trustees of that society to the education of such poor chil- 
dren belonging to the city of Hudson as may be, in their 
opinion, entitled to gratuitous education, and to the sup- 
port and maintenance of the school or schools established 
by such trustees.^ 
Copy of ap- ,§ 162. [Sec. 140.J The treasurer of the county of 
portionment Columbia shall transmit to the board of supervisors of 
the county, at their annual meeting, a certified copy of 
the apportionment made by him.^ 
Supervisors §) 163. [Sec. 141.] The supervisors shall annually 
equar*^ add to the amount to be raised on the said districts and 
amount. parts of districts respectively, for defraying town expen- 
ses, a sum equal to tlie amount thus apportioned to such 
districts and parts of districts, with the addition of five 
cents on the dollar for collector's fees, and shall cause the 
same to be collected at the same time and in the same 
manner as other taxes levied on towns are collected.' 
Collector ^ 164. [Sec. 142.] The collector shall pay over the 

how to pay. nioneys so collected by him, after deducting five cents 
on the dollar for his fees, to the commissioners of com- 
mon schools for the city of Hudson.' 
Commission ^ 165. [Scc. 143.] The commissiouers of common 
dis'^tVibu^c." schools for that city shall distribute and pay to the trus- 
tees of such school districts and parts of districts, the 
amount so received by them from the collector and the 
county treasurer, in the same proportion in which such 
moneys were collected from each district and part of a 
district. ' 
Assessors to § 166. [Sec. 144.] To enable the supervisors of the 
ilabuants. '"" county to make such addition, it shall be the duty of the 
assessors of the ward within which such school districts 
and parts of districts shall be situate, to designate on 
their asesssment rolls the inhabitants who resicle within 
each of such districts and parts of districts.' 

(I) Laws of 1823, p. 92; 1817, p. 324, $ 7. 



aril 
)auy. 



COMMON SCHOOLS. :399 

ALBANY. 

Art. 7, title 2, chap. 15, part 1 R. S. 

^ 167. [Orig. sec. 1.] In each of the wards of the city ^ne coin- 
of Albaii)', there shall be elected one commissioner, and anrionein- 
one inspector of common schools, at the annual election choslmfn^*' 
for supervisor, by the persons qualified to vote for town ""^^n^^ 
officers ; but the persons residing west of Perry-street, 
shall not vote for the said commissioner and inspector at 
such election.' 

^ 168. [Oriff. sec. 2.1 Any vacancy by death, resiff- vacancies 

*K ^ ^ p ■' I • , ■ r • liow filled. 

nation, or removal from the said city, of any commis- 
sioner or inspector, shall be filled by the common council 
thereof, until the next election. 

^ 169. [Orig. sec. 3.] The commissioners so elected Powers of 
.shall form a board, with power, from time to time, to '^wllvre. 
form the said city into school districts, not exceeding five 
in numl)er, east of Perry-street : They shall also appoint 
three trustees for each district, to hold their offices for 
one year, and shall fill any vacancy which shall hap- 
pen. 

^ 170. [Orig. sec. 4.] The said commissioners, with i'' 
the consent of the cominon council, may form another 
or other school districts in the said city of Albany. 

^ 171. [Orig. sec. 5.] The trustees of each district, or Powers of 
a majority of them, shall, within their respective districts ciisri'ic^s, ' 
have power to hire a school-house or rooms, and furnish 
the same with necessary fuel and appurtenances ; ap- 
point a collector ; hire a teacher or teacliers ; fix the rate 
of tuition fees, not exceeding two dollars a quarter for 
any scholar ; and exempt from the payment of teacher's 
Avages any indigent persons within the district they shall 
think proper. 

^ 172. [Orig. sec. 6.] The clerk of the common coun- C'^'-k itv 
cil shall be clerk to the commissioners, and shall be sub-sk,nerl\ 
ject to the like duties, and receive the like compensation 
a.s town clerks in the several towns, in similar cases. 

^ 173. [Orig. sec. 7.] The superintendent of common Apportion- 
.schools shall apportion to the city and county of Albany sc'h,','oi !ik. 
their share of the school moneys, according to the num- '^m^" '^' 
her of children over five and under sixteen years of age 
residing therein, in the same manner as to other coun- 
ties in this slate.^ 

(!> 174. [Orig. sec. 8.1 The county treasurer shall an- ciiambor- 

'■' L = J J lain to rr. 

■ ceive school 

(1) Laws of 1830, chnp. 210. (2) This section seems to be superseded '"oneys. 

by § 5 and G of chap. .320, laws of 1830, which was passed subsequent to 

this act. See ante 6 3 of this Title. 



4CX) LAWS RELATING TO 

nually pay to the chamberlain of the city of Albany, 
that part of the school moneys apportioned to the city of 
Albany for the support of conunon schools to be esta- 
blished by this act, and for the support of Lancaster 
schools established or to be established in the said city. 
Auunnit 10 ^ 175. [9.j The supervisors of the county of Albany, at 
^)e iai*ei y ^^^.^ annual meeting in each year, shall cause a sum of 
money equal to twice the amount of the money apportion- 
ed to the city from the common school fund, together 
with collectors' fees, to be raised, levied and collected, in 
the same manner that other taxes are raised, levied and 
collected ; and when so raised, to be paid to the cham- 
berlain, for the support of common schools in the city of 
Albany, to be apportioned and distributed as now pro- 
vided for by law.^ 
Chamber- ,^5 1*^'' [^^'ig- i^cc. 10.] All moueys paid to the cham- 
laiiitokvep beriain for the support of common schools in the city of 
tmoi. Albany, shall be kept distmct from other money, and 

subject to the drafts of the commissioners, and payable 
to the orders of the trustees of the respective school dis- 
tricts, and to the trustees of the Lancaster school society. 
Apportion- ^^ I*'"- [Orig. sec. 11.] The board of commissioners 
schoormo- sihall apportion the school moneys to be received by them, 
"«>;,« '^y '■;';'^- amono- the several school districts and the Lancaster 
schools, provided such schools shall have been kept at 
leiist nine months in the year, in the five districts creat- 
ed by the third [U>9th] section of this act, and at least 
four months in the year in the district created by the fif- 
teenth [iSlst] section thereof, in proportion to the ave- 
rage number of scholars attending such schools, over 
five and under sixteen years, who have actually attend- 
ed such schools during the year; to be ascertained by 
the teachers keeping an exact account of the number of 
scholars present every school time or half day, which 
being added together, and divided by five hundred, the 
number of half days for a year, shall be considered the 
average of attending scholars ; which average shall be 
sworn or affirmed to by the teacher, 
lb. ^ 17S. [Grig. sec. 12.] If a school shall have been 

kept four months in any one or all of the said districts, 
for the year one thousand eight hundred and thirty, then 
the same shall participate proportionably in the said 
school moneys to be apportioned in the said city in the 
year one thousand eight hundred and thirty-one. 
General ' >^ 179. rUriij. scc. 13.] The commissioners, inspec- 

powers and n l >- j 

(1) Laws of 1S37, chap. 369. 



COMMON 8CU00L8. 401 

tors, trustees and collectors^ shall possess the like powers, JM'^<^« "'"^■ 
and be subjfxt to the like duties and liabilities, as the 
same odiceis and persons in the towns in this state, ex- 
cept when it is otherwise provided in this act, arid except 
also that the said comrnissioriers and inspectors shall not 
demand or receive any pay for services under this act. 

,3 180. [Orig. sec. 14.J The trustees of the Lancaster }'^^;.^^'^,V;' 
school society, before they receive the moneys apportion- '■c''""!"*- 
<id to them, shall make returns, the same as the district 
^bools are required to make. 

S 181. fOrinf. sec, 15.1 The inhabitants of the city of hthMraut>i 

-•J' L o J J wf'«t ol Per- 

Albany, residing west of Perry-street, and east of a pa- ry-Htrcet to 
rallel line three miles west thereof, qualified to vote for ^^\'^"['^^^"'^-' 
town officers, shall, on the Tuesday succeedinf^ the an-'-'"; if- 
nual election lor supervisors m each year, meet at some 
convenient place within said bounds, and there elect by 
ballot one cormnissioner and one inspector of common 
schools, and one collector, and form themselves into a 
school district, the same as a separate ward, for all the 
purposes of this act : And they are hereby authorized to 
impose and collect the same taxes upon the real and per- 
sonal property within the said district, for the hire or 
erection of a school-house, and the support of a tcaclier, 
as if they were a separate ward, and shall Ixi entitled to 
a like distribution of tlie school money. The first meet- 
ing shall be held at the house now occupied by James 
Magher ; and the inhabitants then assembled shall de- 
termine when the next meeting shall be held.^ 

3 182. [Orig. sec. 1.] The commissioners of common Mon/.yuj ii.. 
schools of the city of /Mbany east of Perry-street., or the Kchoou'ea-t 
majority of them, at any stated meeting thereof, may, f/^ u^l^j;-^'^' 
with the consent of the common council of .said city, in y^art*- 
each year, for the term of three years, direct such sum yearn by 
to be raised in the said city, for the .support of common*"*'"''"'^ 
schools for the then ensuing year, as they may deem 
necessary, but not exceeding a sum equal to the amount 
apportioned to the common schools and Lancaster .schooLo 
in said city, east of Perry -street, from the common school 
fund. 2 

,3 183. [Orig. sec. 2.] The supervisors of the county ib, to :^paki 
of Albany, at their annual meeting, .shall cause suchl^in. *"* ''^' 
sum as the said commi.ssioners shall direct to be raised, 
to be levied and collected upon the real and personal pro- 
perty within the said city of Albany, east of Perry-street, 

(1) The prewding I'j gections are from ''An art relating to common 
schools in the city of Albany," passed April 17, 1830, cbap. 240, p. 260. 
(2) Laws of 1331, chap. 111. 

26 



402 LAWS RELATING TO 

together with the collector's fees, in the same manner 
that other taxes are levied and collected ; and when so 
collected it shall be paid to the chamberlain for the sup- 
port of common schools in the said city, east of Perry- 
street.^ 
Moneys how ^ 184. [Orig. sec. 3.] The commissioners may direct 
applied. j_jjg application of the moneys thus raised, or any part 
thereof, for the hire, purchase or erection of a school- 
house in any district in the said city, east of Perry- 
street, and with the consent of the common council may 
mayTeIn- i^crease the number of districts east of Perry-street, from 
creased. (jixie to time, and alter the same.* 
Other mo- ^ 185. [Orig*. sec. 4.] The commissioners shall appor- 
p^?tto^"e'd.*^ tion the moneys received by them for the use of common 
schools in the city of Albany, other than the moneys 
which shall be raised as herein provided, among the se- 
veral districts and the Lancaster schools, provided such 
schools shall have been kept at least six months in the 
year in the districts east of Perry-street, and four months 
in the districts west of Perry-street^ in proportion to the 
average number of scholars attending such schools over 
five and under sixteen years, who have actually attend- 
ed such schools during the year, to be ascertained in the 
manner prescribed in the eleventh [177th] section of the 
act hereby amended, and shall in like manner appor- 
tion the moneys to be raised as herein provided, and not 
otherwise appropriated among the several districts and the 
Lancaster schools in the said city, east of Perry-street.^ 
Djstricis § 186. [Orig. sec. 5.] The inhabitants of the city of 

rj^lt r°e*e^^'^ Albany residing west of Perry-street, within any district 
powers, &s. now fomied, or which shall hereafter be formed, in said 
city, and the clerk, trrtstees and collector of every such 
district, shall possess the like powers and be subject to 
the like duties and liabilities as the inhabitants and same 
officers of school districts in the towns in this state, ex- 
cept where it is otherwise provided in this act.^ 
School- . » § 187. The trustees of school district number two in 
sriaNva."" the city of Albany, or their successors in office, are hereby 
empowered to erect a school-building, for the use of said 
district school, and they are hereby authorized to mort- 
gage the lot and building for the balance that may be 
due on the same, over and above the moneys now in 
hands of said trustees.^ 

(1) Laws of 1831, chap. 111. (2) The preceding five seclions are from "An 
act to amend an act, entitled ' An act relating to common schools in the 
city of Albany,' passed xipril 11^ 1831j" chap. 111, p. 153» (3) Laws of 
1832, chap. 263. 



COMMON SCHOOLS. 403 

^ 188. It shall and may be lawful for said trustees, fatg^^^^l^"" 
or their successors in office, to exact ten per cent on each 
rate bill for tuition, to be applied towards the expenses 
of interest, and the mortgage upon said building/ 

S 189. The provisions of an act to amend an act en- Actofissi 

• t 1 ,, I ^ , . 1 1 • 1 • -extended to 

titled " An act relatmg to common schools m the city oi issg. 
Albany," passed April 11, 1831, are hereby continued 
in full force and operation for the term of five years from 
and after the passage of this act.'^ 

Chap. 213, Laws of 1837.— Passed April 20. 

^ 1. The board of supervisors of the county of Alba- Money to be 
ny are hereby directed, at their next annual meeting, ''^'"^ ^ 
and at each successive annual meeting, for the term of 
nine years next thereafter, to cause in each successive 
year as aforesaid, to be assessed, levied and collected, the 
sum of two thousand five hundred dollars, making in 
all a sum of twenty-five thousand dollars, upon the tax- 
able property in the city of Albany east of Perry-street, 
for the purpose of erecting in each school district east of 
Perry-street, a substantial brick school building, equal 
to that now erected in school district number two ; which 
sura when collected, shall be paid to the chamberlain of 
the city of Albany, and to be by him applied to the pay- 
ment of the moneys that may be borrowed under this 
act. 

^ 2. The said district school buildings shall be built Buildings to 
of stone or brick on the building lots now belonging to ^^ ^|!j|'^"*' 
said districts, or that may hereafter be vested in said 
school districts. 

^ 3. The common council of the city of Albany are commission- 
hereby directed to appoint three commissioners ; and the li'^gj^g^^^ g„. 
said commissioners, or a majority of them, are hereby perintend 
authorized to fix the site, and to determine upon the "' '"^^' 
plan, form and manner of the construction of the said 
district school buildings, and to superintend the building 
of the same, and as often as may be necessary to draw 
for and receive the moneys appropriated and borrowed 
for the construction of the said district school buildings, 
and to do all such other acts and things as may be ne- 
cessary and proper to be done to complete the same, and 
also to pay up any mortgage due or to become due on 
any district school lot and building east of Perry-street, 
the title whereof is vested in the district ; and the said 

(1) Laws of 1832, chap. 263. (2) § 13, of chap. 230, laws of 1834, pass- 
ed May 1, 1834. 



404 LAWS RELATING TO 

commissioners may, with the consent of the common 
council of said city, purciiase a lot, or lots, or buildings 
for any school district east of Perry-street, or exchange 
those now belonging to the district for a more eligible 
site, vesting the title thereof in said district. 

To give se- g 4. The said commissioners shall, before they enter 
upon their duties, give a bond to the mayor of said city, 
with sufficient securities to be approved by him, in a pe- 
nalty of double the amount entrusted to them, condition- 
ed for the faithful expenditure of the moneys committed 
to their charge for the purposes aforesaid, which said 
bond shall be filed in the chamberlain's office. 

Their pay. ^ 5. The said Commissioners shall be allowed such 
sum for their services, not exceeding two dollars for eve- 
ry day actually and necessarily devoted to the perform- 
ance of their duties under this act, as the common coun- 
cil shall think proper; such allowance to be audited by 
the said board of common council. The said commis- 
sioners shall render annually an account of their pro- 
ceedings and expenditures to the common council, until 
they shall have fully executed their duties under this act. 

L^nn of S25,- ^ 6. The Comptroller is hereby authorized to loan to 
the city of Albany a sum not exceeding twenty -five 
thousand dollars, out of any moneys now or hereafter 
in the treasury of this state belonging to the capital of 
the common school fund, on receiving from the cham- 
berlain, on behalf of said city, a bond, conditioned for 
him as treasurer and his successor in office, to repay the 
said sum in ten equal annual instalments, together with 
the annual interest on said loan from the time it is made, 
at the rate of six per cent per annum ; and which bond 
said chamberlain is hereby authorized to make and exe- 
cute. 

Interest of ^ 7. The board of supervisors of said county, if the 

u^an provid- g^^-^g gj^g^jj becomo ueccssary, shall cause to be levied, 
assessed and collected upon taxable property in the city 
of Albany east of Perry-street, in addition to the sums 
hereinbefore directed to be levied, assessed and collected 
annually, a sum sufficient to pay the interest of the said 
sum or sums to be loaned ; and it shall be the duty of 
the said chamberlain of the said city, to pay the said 
sums of money herein before directed to be levied, assess- 
ed and collected, together with the interest thereon, when 
so collected and paid to him, into the treasury of this 
state, to apply in payment of his said bond. 

^TOilouse S 8. The said commissioners are hereby authorized. 



COMMON SCHOOLS. 



406 



with the consent of the common council first had and 
obtained, to purchase a site, and erect a Lancaster school- 
building, of the same dimensions as a district school- 
building, in order to comply with the report of the com- 
mittee of the common council, adopted by the board, in 
one thousand eight hundred and thirty-three. 

^ 9. The school-buildings, and the lots on which the Exemption 
same are erected, now belonging to, or that may here- 
after belong to, any school district in said city of Albany, 
shall be exempt from all taxes or assessments. 

^3 10. This act shall take effect immediately after the Act to take 
passage thereof. ^^'^^'" 

Chap. 358, Laws of 1837.— Passed May 8. 

^ 1. The commissioners of common schools of the '"o"''"?-"' 
city of Albany, in each year, shall apportion of the mo- 
neys paid to the chamberlain of said city, for the sup- 
port of common schools, one hundred dollars to each 
school district east of Perry -street, and twenty -five dollars 
to each school district west of Perry-street ; said moneys 
to remain in the chamberlain's hands to be paid to the 
trustees of each school district, in quarterly payments, on 
the first day of April, July, October and January, in each 
year, to be applied for contingent expenses, repairs, fuel, 
Sec, and to be accounted for as other school moneys are, 
to the district and to the commissioners of common 
.schools. 

^ 2. The commissioners of common schools sliall ap- ^"°J'^'™<^<' '" 
portion annually, on the returns of qualified teachers, for lum 
the instruction of the children in the Albany orphan asy- 
lum for destitute children, their proportion of the public 
money for the support of schools, according to the ele- 
venth section of the act relating to common schools in 
the city of Albany, passed April 17, 1830, which money, 
when so apportioned and paid to the trustees of the dis- 
trict, shall be paid to such teachers for teachers' wages. 

Chap. 3G9, Laws of 1837.— Passed May 9. 

^ 2. All moneys apportioned by the commissioners of Apportion- 
(jommon schools, to the trustees of a district, which shall "'"'■ 
have remained in the hands of the chamberlain for one 
year after such apportionment, by reason of the trustees 
neglecting or refusing to receive the same, shall be ad- 
ded to the moneys next thereafter to be apportioned by 
the commissioners, and shall be apportioned and paid 
therewith, and in the same manner. 

,5 3. No school district now formed, or hereafter to be Restriction. 



406 



LAWS RELATING TO 



formed, east of Perry-street, shall have power to hold a 
district school meeting to vote a tax, or to do any act as 
a district meeting, nor shall have power to sell or dis- 
pose of the district property, without a legislative enact- 
ment. 
District S 4. It shall be the duty of the trustees of each school 

app'ilinted^^ district east of Perry-street to appoint one of their num- 
ber clerk of the district, who shall record their proceed- 
ings in a book to be provided for that purpose, and to 
enter therein true copies of all reports made by the trus- 
tees of the district to the commissioners of common 
schools ; and to keep an account of all moneys received, 
and how^ expended. It shall likewise be the duty of the 
clerk to keep and preserve all records, books and papers 
belonging to his office, in like manner, and subject to the 
same penalties as are prescribed by law in relation to 
town clerks. 

^ 5. This act shall take effect immediately on the pas- 



Act to take 
effect. 



Apportion- 
ment of 
school mo- 
ney allowed 
to Schenec- 
tady. 



sage thereof. 



SCHENECTADY. 



Duty of 

county 

treasurer. 



Of school 

commis 

sioners. 



Art. 7, title 2, chap. 15, part 1, R. S. 

,S 190. [Orig. sec. 1.] The amount of moneys allow- 
ed to the city of Schenectady, by the superintendent of 
common schools, shall be apportioned by the treasurer of 
the county of Schenectady, between the Schenectady 
Lancaster school society, and such common school dis- 
tricts and parts of districts as now are or hereafter may 
be organized without the bounds of the compact part of 
the city of Schenectady, called the police ; and in a ratio 
proportioned to the number of children over the age of 
five and under sixteen years within such compact part, 
and the number of such children in such districts and 
parts of districts respectively, without such compact part.^ 

,§ 191. [Orig. sec. 2.]. The treasurer of the county of 
Schenectady, shall pay the amount thus apportioned to 
the Schenectady Lancaster school society, to its treasurer, 
for the use of said society, and the amount thus appor- 
tioned to such school districts and parts of districts, to tlie 
commissioners of common schools for the several wards 
of the city of Schenectady.' 

§ 192. [Orig. sec. 3.] The commissioners of common 
schools for the several wards of the said city, shall dis* 
tribute and pay to the trustees of such school districts 
and parts of districts, the amount so received by them 



(.1) Laws of 1829, chap. 324. 



COMMON SCHOOLS. 407 

from the county treasury, in proportion to the number 
of children residing in each, over the age of five and 
undet that of sixteen years, as the same shall have ap- 
peared from the last annual report of their respective trus- 
tees.* 

^ 193. [Orig. sec. 4.1 The assessors of the several or assessor?. 
wards of the city of Schenectady, shall every year in 
their respective wards, take a census of the children be- 
tween the ages of five and sixteen years, residing with- 
in the compact part of said city, and shall between the 
first day of May and the first day of October, in each 
year, make and transmit a report of the same to the 
clerk of the county of Schenectady.' 

§ 194. [Orig. sec. 5.] The reports required by law to School 
be made by the trustees of the common school districts 
and parts of districts, without the bounds of the com- 
pact part of the city of Schenectady, to the commis- 
sioners of common schools, for the several wards of the 
said city, shall be verified by the affidavit of the said 
trustees, ' 

^ 195. fOrig. sec. 6.1 The moneys received by the ^PP^rtiou- 
treasurer oi the county of Schenectady, irom taxes col- ney coiiect- 
lected in said city, under the laws relative to common **'' ^^ ^^^' 
schools, shall be apportioned by him between such com- 
mon school districts and parts of districts, without the 
bounds of the compact part of said city, and the Sche- 
nectady Lancaster school society, in the ratio proportioned 
to the amount of the assessments of the real and per- 
sonal estates of the taxable inhabitants residing in such 
districts and parts of districts, and the assessments of 
all real estate situate therein and owned by persons re- 
siding out of such districts and parts of districts, and the 
amounts of the assessments of the real and personal es- 
tates of all the taxable inhabitants of the city, after de- 
ducting thereout the aggregate of the assessments last 
mentioned.' 

^ 196. [Orig. sec. 7.] The treasurer of the county of^o«Jw'^ifc 
Schenectady shall pay the amount apportioned by virtue treasurer. 
of the last preceding sections to the Schenectady Lan- 
caster school society, to its treasurer, for the use of said 
society, and the amount apportioned under said sections 
to such school districts and parts of districts, to the com- 
missioners of common schools for the several wards of 
said city, which amount so paid to the said commission- 

(1) Laws ofl329, chap. 324. 



408 



LAWS RELATING TO 



How distri- 
bulefi. 

Abstracts of 
assessment 
rolls to be 
fiirnislned by- 
assessors. 



Territory to 
be dividea 
by conuiiis- 
sioners. 



Annual re- 
ports of 
l.ancaster 
schools. 
* 495 



I'ouglikeep- 
sie village a 
school dis- 



School mo- 
ney how !o 
be paid. 



ers, shall be distributed and paid by them in the manner 
provided ia the third section of this act.^ 

^ 197. [Or\g. sec. 8.J To enable the treasurer of said 
county to make the apportionment required by the sixth 
section of this act, the assessors of the several wards of 
the city of Schenectady shall annually, within the time 
limited in the fourth section of this act, for taking the 
census therein mentioned, make out and deliver to the 
treasurer of said county, an abstract from the assess- 
ment rolls of their respective wards, containing the names 
and the amounts of the assessments, of the real and 
personal estates of each of the taxable inhabitants re- 
siding in the said school districts or parts of districts, to-" 
gether -with the amount of the assessments of all real 
estate situate therein, and owned by persons residing 
out of such districts or parts of districts.' 

§ 198. [Sec. 151.] The commissioners of schools of 
the city, shall divide that portion of the territory of the 
first and second wards of the city, not comprised within 
tha bounds of the police, into such number of school dis- 
tricts, as they may deem convenient, and may alter and 
regulate such districts, according to the provisions of 
this Title ; and the provisions of this Title shall apply 
to all districts so estalolished.^ 

§ 199. [Sec. 152.] It shall be the duty of the trustees 
of the Lancaster school in the city of Albany, of the 
corporation of the city of Hudson, *and of the trustees* 
of the Schenectady Lancaster school society, to make an 
annual report to the superintendent of common schools,. 
in such form as shall be prescribed by him, of the state 
and condition of the schools for whose benefit the school 
moneys shall have been applied in the cities of Albany, 
Hudson and Schenectady.^ 

POUGHKEEPSIE. 

Art. 7, title 2, cTiap. 15, part 1, R. S. 

§ 200. The village of Poughkeepsie shall form a per- 
manent school district, not subject to alteration by the 
commissioners of common schools for the town in which 
said village is situated.^ 

g 201. The school moneys which the above perma- 
nent district shall from time to time, be entitled to re- 
ceive from the commissioners of common schools in said 



(1) Laws of 1829, chap. 324. (2) Laws of 1827, p. 156, § 1. (3) Laws 
of 1819, p. 267, § 16; 1822, p. 287, § 3. (4) Sections 21)0, 201 & 202 were 
substituted by chap. 284, laws of 1830, for orig. § 153, 154 & 155, and 
section 203, was added by the same chapter. 



COMMON SCHOOLS. 409 

town, shall be paid to the trustees of tlie Poughkeepsie 
Lancaster school society.' 

§ 202. The trustees of the above society shall be so Trustees to 
far considered the trustees of the said permanent district, "•'°" 
that thc}^ shall be bound to report to the commissioners 
of common schools in said town, the number of chil- 
dren over the age of five and under sixteen years, in 
said district.' 

CATSKILL. 

Art. 7, title 2, chap, 15, part 1, R. S. 

§ 203. The commissioners of common schools for the Catskiii 
town of Catskiii, are hereby directed to pay over from frU^No^T. 
time to time, to the trustees of school district number 
one in said town, the school moneys which said district 
may be entitled to.' 

UTICA. 

Art. 7, title 2, chap. 15, part 1, R. S. 

^ 204. [Sec. 156.] The treasurer of the county ofutica; 
Oneida shall pay to the treasurer of the village of Utica, ne/riiow 
the proportion of school moneys apportioned by the super- P'^"^ 
intendent of common schools to the tov/n of Utica, to be 
expended by the trustees of the village, for the support of 
a free school in the same, for the education of such poor 
children therein, as shall, in the opinion of the board of 
trustees, be entitled to gratuitous education.^ 

(5205. [Sec. 157.] The village of Utica shall form Trustees of 
one school district ; and the trustees of the village shall por't^a^ncTac^ 
make an annual report to the clerk of the county of ''*'"'^' 
Oneida, within the same period that other district re- 
|K)rts are to be made, of the number of children in said 
village over the age of five and under sixteen years, and 
of the state and condition of their schools ; and shall ac- 
count to the treasurer of the county of Oneida, for the 
moneys paid to them.'^ 

^S 206. [Sec. 158.] The trustees of the village of Utica, To raise tax 
shall have power annually to cause to be raised and and^wl"^^ 
levied on the inhabitants thereof, such sum of money 
not exceeding one hundred dollars, as shall, in the opi- 
nion of the trustees, be sufficient to keep the school- 
house erected for said free school in repair, and to pur- 
chase fuel and other appendages therefor ; which sum 
shall be collected, in addition to the sums 'authorized to * 40fi 
be raised in said village, by adding to the tax assessed 

(1) Seoia.iis SOU, 201 & 202 were substituted by chap s. 4, laws of 1830, 
lor orig. § 15o, 154 & 155, and section 203, was added ,j the same chap- 
ter. (2) Laws of 1817, p. 225, § 27 & 29. 



410 



LAWS RELATING TO 



Trustees 
may estab- 
lish echooli 
&c. 



ScIkkjI 
money. 



on each inhabitant his due proportion, according to the 
last previous assessment of the real and personal pro- 
perty of the inhabitants ; which additional sum shall be 
collected by the collector of said village, as other village 
taxes are collected.' 

^ 207. The trustees of the village of Utica may es- 
^ tablish so many common schools in said village, as in 
their opinion the purposes of education may requiie, and 
may distribute the money received from the common 
school fund among such schools, in such manner as 
they shall deem most useful.*^ 

Chap. 19, Laws of 1832.— Passed February 13. 

^ 65. That out of the moneys appropriated from the 
common school fund to the county of Oneida, the city 
of Utica shall have its proportion with other towns in 
said county, which money shall be paid by the trea- 
surer of said county, to the treasurer of said city, and 
be subject to the order of the common council. The 
common council shall have power to establish so many 
common and free schools in said city, as in their opinion 
the purposes of education may require, and shall dis- 
tribute the money received from the common school 
fund, among such schools, and in such manner and pro- 
portions as they shall deem most useful. 

^ 69. All former acts and parts of acts, relative to the 
incorporation of the village of Utica, are hereby repeal- 
ed ; but the repeal of said acts shall not affect any act 
done, or right accrued or established, or any proceeding, 
suit or prosecution had or commenced previous to the 
time when such repeal shall take effect ; but every such 
act, right and proceeding, shall remain as valid and ef- 
fectual as if said acts had remained in force ; and all 
the officers elected or appointed under or by virtue of the 
acts hereby repealed, shall continue in office until and in- 
cluding the Monday next after the first Tuesday in 
March next, unless the term for which they, or any of 
them, were elected or appointed, shall sooner expire.^ 

FLATBUSH. 

Art. 7, title 2, chap. 15, part 1, R. S. 

Fiaibusi) ^ 208. [Sec. 159.] The school moneys appropriated 

foTademy.'* ^^ ^^^^^ P^'^^' ^^ ^^^^ ^^"^^ ^^ Flatbush, comiuonly called 

" the Old Town," excepting such portion thereof as may 

(1) Laws of 1817, p. 225, § 27 & 29. (2) Laws of 1831, chap. 136. (3) 
By the 64th section of this act, it is provided that the said city shall, for 
all the purposes contemplated by the statute entitled " Of Common 
Schools," be " considered one of the towns of tlie county of Oneida." 



Repeal. 



COMMON SCHOOLS. 411 

be applicable to the instruction of children Hving on the 
borders of the old town, and sent to school to the ad- 
joining towns, shall be annually paid, by the several 
officers whose duty it shall be to pay the same, to the 
trustees of the Academy of Erasmus Hall.' 

^209. [Sec. 160.] The trustees receiving such mo- now applied, 
neys shall give their receipt therefor, and shall apply the 
moneys received to the education of such poor children 
living in "the old town" and sent to the academy, as 
in their opinion shall be entitled to a gratuitous educa- 
tion. ' 

^210. [Sec. 161.] The trustees of the academy shall How ac 
account to the commissioners of common schools of the '^°""'*' '"" 
town of Flatbush, for the faithful application of the 
school moneys received by them, and shall make an 
annual report to the same commissioners on the first day 
of May in each year, of the progress and number of the 
children of "the old town" so taught in the academy.^ 

FLUSHING. 

Art. 7, title 2, chap. 15, part 1, R. S. 

^211. [Sec. 163.] The commissioners of common Fiushin? : 
schools of the town of Flushing shall pay to the man- aslociat'ion.' 
agers of the Free School Association, in school district 
number five, the school moneys apportioned to said dis- 
trict so long as no common school is taught in said dis- 
trict according to the general provision of law.^ 

§212. [Sec. 164.] The managers of the free school to niakc an- 
association in such school district shall make an annual ^"^J^^ '''"'^°"' 
report to such commissioners, within the same period 
that other district school reports are to be made, of the 
number of children in the district over the age of five 
and under sixteen years, and of the stale and condition 
of their school ; and shall account to such commission- 
ers for the moneys paid to them.** 

COVERT AND OVID. 

Art, 7, title 2, chap. 15, part 1, R. S. 

§ 213. It shall be the duty of the commissioners oicovemud 
common schools in the towns of Covert and Ovid, coun- fa c^^i,^^"^' 
ty of Seneca, to meet in some convenient place in said 
towns, on or before the first Tuesday of June in each 
year, to apportion their public school money to the se- 
veral districts in said towns. ^ 

(1) Laws of 1814. p. 91; orig. sec. 162 repealed by chap. 138, laws of 
1835. (2) Laws of 1818, p. 121. (3) Laws of 1829, chap. 339. 



412 



LAWS RELATING TO 



Coloured 
cliildren in 

Gales and 



Commis- 
sioners of 
common 
schools. 



School lax 
how to be 



Addilioii al 
sums. 



GATES AND BRIGHTON. 

Art. 7, title 2, chap. 15, parti, R. S. 

^ 214. The commissioners of common schools of the 
towns of Gates and Brighton, in the county of Monroe, 
or a majority of them, may in their discretion cause the 
children of colour of the village of Rochester to be taught 
in one or more separate schools.* 

^ 215. The commissioners of common schools of the 
towns of Gates and Brighton, shall discharge the duties 
of trustees of such school, and shall apportion thereto a 
distributive share of the moneys lor the support of com- 
mon schools.* 

ROCHESTER. 

Title 6, of chap. 199, laws of 1834. —Passed Apri 1 28. 

§ 1. The mayor, aldermen and assistants of the city 
of Rochester, shall, by virtue of their offices, be com- 
missioners of common schools in and for the said city, 
and in common council shall perform all the duties of 
such commissioners, and shall have and possess all the 
rights, powers, and authority of commissioners of com- 
mon schools in the several towns of this state. The 
clerk of the city shall be the clerk of the said commis- 
sioners, and shall perform all the duties enjoined by law 
upon the clerks of commissioners of common schools in 
the several towns of this state. 

^2. The moneys required by law to be raised by tax 
for the support of common schools shall be levied and 
raised in the city of Rochester by the supervisors of the 
county of Monroe, in the same manner as such taxes 
are directed to be raised in the several towns in the coun- 
ty of Monroe ; and the amount raised in the said cit}^ 
shall be paid to the treasurer thereof: and directions to 
that effect shall be given in the warrants delivered to the 
collectors in the said city, and the sum apportioned to 
the said city by the superintendent of common schools 
shall be paid to the treasurer of the said cit)r by the trea- 
surer of Monroe county. 

^ 3. The common council shall have the same pow- 
er to raise any additional sum for the support of com- 
mon schools, as is given by law to the towns of the state: 
which shall be assessed, levied and collected, and paid 

(1) Laws of 1832, chap. 136 By the act to incorporate the Rochester 
Hiah School, laws of 1827, chap. 70, p. 56, districts four and fourteen in 
Brightoa, are united into one and placed under the charge of the trustees 
of the high school. 



COMMON SCHOOLS. 



413 



into the city treasury, in the same manner as the sums 
raised to defray the general expenses thereof. 

5 4. The moneys so paid into the city treasury shall J^^^^^'^'^'i*^" 
be distributed among the several school districts therein, money. 
by the common council, in the same manner prescribed 
by law in relation to the distribution of common school 
moneys among the districts of towns, and the said com- 
mon council shall receive and make the several returns 
and reports required by law of commissioners of common 
schools in towns, and the members thereof shall be in- 
dividually liable for any neglect of duty in the premises, 
in the same manner as town commissioners of schools. 

§5. The common council shall annually appoint a School 
number of inspectors of conunon schools in the said city, "'^p'^'^'°''^ 
not exceeding twelve, and not less than five, who shall 
possess all the powers and authority of inspectors of com- 
mon schools elected by any town, and shall be subject 
to the hke duties and obligations. In case of the refusal 
of any person so appointed to serve, or in case of a va- 
cancy in the office, the common council shall, from time 
to time, appoint others, who shall have the like powers 
and be subject to the same duties. 

§6. The freeholders and inhabitants of any school mgh schools 
district in the said city may, by a vote of two-thirds of °J^y ^^ "'^■ 
the persons present, and entitled to vote at any meeting 
of such district convened after notice of the object of 
such meeting shall have been published for one week in 
some newspaper of the said city, and after the said no- 
tice shall have been served on every such freeholder or 
inhabitant, by reading the same to him, or in case of 
his absence, by leaving the same at his place of resi- 
dence, at least five days previous to such meeting, de- 
termine either separately ot in conjunction with any other 
school district or districts in the said city, to have a high 
school created for such district or districts as shall so agree 
to unite for that purpose ; and may vote a sum, not ex- 
ceeding five thousand dollars, to be raised for erecting a 
building for such high school ; and on evidence of such 
vote, and of such notice having been published and 
served as above provided, being presented to the common 
council, they may, in their discretion, authorize the erec- 
tion of a high school in such district, or may authorize 
the several districts so agreeing to be erected in one dis- 
trict, which shall thereafter form one school district; 
and all the property, rights and interests of the several 
districts so united shall belong to, and be vested in, 



414 



LAWS RELATING TO 



the trustees of the said united districts ; and the trus- 
tees thereof shall have all the powers of trustees of 
school districts ; shall be elected in the same manner, and 
shall be subject to all the duties and obligations of trus- 
tees of common school districts. 

School hou- ^ 7. Upon such authority being given, the trustees 
of such district shall proceed to raise the sum which 
shall have been voted at such district meeting or meet- 
ings for the erection of a building, in the same manner 
that moneys voted by school districts to build school- 
houses, are directed by law to be raised ; and the same 
proceedings shall be had in all respects ; and the mo- 
neys so raised shall be expended by the trustees and ac- 
counted for by them to the common council. 

R'Ri'ts^iind g 8. Such school district shall have all the rights, pri- 

prm egt;s. yjjgggg g^^^ benefits of a common school district, and the 
freeholders and inhabitants thereof may vote a sum not 
exceeding seventy-five dollars in each year, to be raised 
for the purpose of keeping such building in repair, which 
shall be assessed and collected in the same manner as 
sums voted by district meetings for the repair of school- 
houses, are directed by law to be raised and collected. 

Rochester ^ 9. The three last preceding sections shall not ex- 

high school. . ^ j_ i i t • • .? ■ , . , . , 

tend to any school district m which there is now a high 
school, or which is attached to the Rochester high school. 

"^m^^^ '■^" S 1^' ^^ ^^^^^ ^^ ^^^^ ^^^y of the trustees of the Ro- 
chester high school to make the reports and returns 
which by law they are required to make as trustees of 
a school district, to the common council, as commission- 
ers of common schools. 
Number of ^ 11. The coiTimon council shall annually publish in 
puSed^^ some newspaper of the city, a statement of the number 
yearly. of high schools and common schools in the said city ; 
the number of pupils instructed therein the year preced- 
ing; the several branches of education pursued by them; 
and the receipts and expenditures of each school, spe- 
cifying the sources of such receipts, and the objects of 
such expenditures. 

BROOKLYN. 

Chap. 92, laws of 1834.-- Passed April 8. 

Overseers ^ 65. There shall be elected in the city, at the an- 

ot the poor. ,. ,. iiiii ., "^ , ■, 

nuai city election to be held therein, by general election 
of the electors of the several wards, three overseers of 
the poor, two of whom shall be taken from the portion 
of the city constituting the first seven wards, and the 
other from the portion thereof constituting the eighth 



COMMON SCHOOLS. 415 



mrnis- 



and ninth wards. There shall also be elected in like co 
manner, three commissioners and three inspectors of ?^° pg^^j^*"** 
common schools, one of which commissioners and one of common 
of which inspectors shall be taken from the last men- 
tioned portion, and the others from the first mentioned 
portion of the city. All the provisions of the Revised 
Statutes, and of any acts amendatory thereof, in relation 
to the relief and support of indigent persons and of com- 
mon schools, which now apply to the town or village of 
Brooklyn, shall be deemed to apply to the city of Brook- 
lyn. The common council shall be and are hereby con- 
stituted a board of auditors in lieu of the board of town 
auditors, and they shall have power to require the exhi- 
bition and rendering of books and accounts to them from 
time to time. 

Chap. 129, laws of 1835.— Passed April 23. 

^ 15. The law, in relation to the common schools ^°,'^g" 
now established or hereafter to be established in the said 
city, shall be so far altered and changed, that the com- 
mon council of the said city shall have the power to ap- 
point annually on the first Tuesday of February, in 
each school district now laid out, or hereafter to be laid 
out in the said city, three trustees of common schools, 
and for the whole city, three inspectors and three com- 
missioners of such schools; and that from and after the 
passage of this act, no trustees, inspectors or commis- 
sioners of common schools shall be elected in the said 
city; but those already elected shall hold their respective 
offices until others are appointed in their place and have 
taken the oath which may be required by law ; and that 
all the legal and statutory provisions in relation to trus- 
tees, inspectors and commissioners of common schools 
now in existence, or hereafter to be passed or enacted, 
shall extend and apply to and govern the said trustees, 
inspectors and commissioners of common schools to be 
appointed as aforesaid under this act, except so far as 
the same may be changed or modified by the provisions 
of this act. 

§ 16. The trustees of the respective school districts in Trustees to 
the city shall, on or before the first day of July in each 
year, report to the common council such amount of mo- 
ney as they shall deem necesary for the support of the 
common schools in their respective districts for the cur- 
rent year, not exceeding eight hundred dollars for each 
district beyond the sum necessary to entitle said district 
to a distributive share of the common school fund, and 



416 LAWS RELATING TO 

such amount, when approved of by the common coun- 
cil, shall be assessed and levied on all the taxable pro- 
perty within the city in the same manner as the other 
taxes for the various public purposes of the city are as- 
sessed and levied ; and the same shall be collected by 
the collectors of taxes in the city in the same manner as 
the other taxes of the city are collected, (a separate co- 
lumn being made in their books for this purpose,) and 
shall be paid by them to the commissioners of common 
schools in the city, to be by them distributed to and 
among the trustees of each district in proportion to the 
amount collected for each of said districts ; and for the 
purpose of enforcing the collecting of the same, the col- 
lectors are hereby invested \rith the same power which 
they now have, and may at any time hereafter have. 
to enforce the collection for the other taxes of the city. 

Chap. 93, laws of 1 836.— Passed April 2. 
School ^ \ 'Phe supervisors and the common council of the 

city of Brooklyn, shall have power at their annual joint 
meeting, to determine what siims in addition to that 
which they determine to be raised for the various public 
purposes of the said city, is necessary to be raised for the 
purchase of a suitable site for a school or school-houses 
in any of the school districts in said city, and for the 
building of a suitable school-house or school- houses, in 
any of the said districts ; which sum or sums shall be 
assessed, levied and collected upon the taxable property 
within the school districts respectively, where such school- 
house shall be built, in the same manner as the other 
taxes of the said city are assessed, levied and collected, 
(a separate column being made in the assessment rolls 
for this purpose) and shall be paid by the said collector 
to the commissioners of common schools in and for said 
city, to be by them distributed to the trustees of each 
district, according to the amount collected in and for each 
of said districts; and for the purpose of enforcmg the 
collecting of the same, the collectors of the said city are 
hereby invested with the same power which they now 
have, and may at any time hereafter have, to enforce 
the collection of the other taxes of the said city. 

NEWBURGH. 

Chap. 144, laws of 1835.— Passed April 23. 

School for § 1. It shall be lawful for the trustees of school dis- 
biack child- ^j.j^,^ number thirteen in the town of Newburgh, known 



COMMON SCHOOLS. 417 

also as the trustees of the Newburgh High School, to 
establish and keep a school for the instruction of black 
children, separate and apart from their high school, and 
to employ competent teachers to take charge of such 
school. 

§1 2. The said trustees shall set apart for the payment ^^'^^ ,'^j.,^ 
of the compensation to such teachers, so much of the 
public moneys received by them, as shall bear the same 
proportion to the whole sum, as the number of black 
children annually reported to the commissioners of com- 
mon schools in said town, as resident in said district, 
shall bear to the whole number of children reported by 
said trustees. 

,^ 3. The said trustees in disbursing the moneys so RestricrionK. 
set apart for said school, shall be subject to all the re- 
strictions and provisions contained in the act relative to 
common schools. 

GENERAL PRO VISION. 

Art. 7, title 2, chap. 15, part 1, H. S. 

^ 223. [Sec. 165.] In all cases where no special pro- oVThlfxlJl^. 
vision is made, the general provisions, regulations and 
penalties of this Title shall be construed to apply to the 
several cities, villages and towns, to which this Article 
relates, and to their several commissioners and inspec- 
tors of common schools, and trustees and collectors of 
school districts.' 

AMENDMENTS. 

Chap. 241, laws of 1837.— Passed April 22. 

;5 1. It shall be the duty of trustees of school districts howfoT. 
to state in their annual reports, the amount of money P^^t. 
paid for teachers' wages in addition to the public money 
paid therefor, and such other information in relation to 
the schools and the districts as the superintendent of com- 
mon schools may from time to time require. 

^ 2. It shall be the duty of the commissioners of com- couuuii^ 
mon schools to state in their annual reports the amount tn vo.p<m. 
of money paid for teachers' wages in addition to the pub- 
lic money paid therefor, in the districts, parts of districts, 
and neighborhoods from which reports shall have been 
received by them or their immediate predecessors in of- 
fice, with such other information as the superintendent 
of common schools may from time to time require, in 

(1) Laws of 1818, p. 121. 

27 



418 LAWS RELATING TO 

relation to the districts and schools wJthin their town. 

Penalty for (? 3_ Commissioners who nefflect to fumish the infer- 
iBation required by the last preceding section, shall seve- 
rally forfeit to their town, for the «se of the common 
schools therein, the sum of ten dollars, to be sued for by 
the supervisor of the town. 

♦jeriaii> (J? 4. The institutions in w^hicb departments for the 

acailernifis to . *^ . - , , , ' i n i 

report about mstruction 01 commou school teachers are or shall be es- 
srtZuLoh" tablished, shall make to the superintendent of common 
*'*"^- schools an annual report of the condition of those de- 

partments, in socb form and containing such informa- 
tion as he may from time to time require ; and in re- 
spect to the organization and management of the de- 
partments and the course of studies therein, the said in- 
stitutions shall be governed by such direction as he may 
prescribe ; and be may direct the said forms and direc- 
tion to be printed by the state printer. 
I'ayf/f colli- ^ 5. Commissioners of common schools shall be en- 
mifMoners. j j^j^^ j^ rcceive one dollar per day for every day actually 
and necessarily devoted by them in their official capacity 
to the service of the town for which they may be chosen, 
the same to be paid in like manner as other town officers^ 
are paid. 
iJookoi (^ 6. The inhabitants of school districts shall have 

L^e^u^has? power, whenever they shall be lawfully assembled at. 
'^^- any district meeting, to vote a tax for the purchase of a 

book for the purpose of recording the proceedings of their 
i*espective districts. 



TOWN SCHOOL FUND. 



AN ACT relative to moneys in the hands of overseers^ 
of the poor. 

Passed April 27, 1829. 

The People of the State of New- Ym^k, represented 
in Senate and Assembly, do enact asfoll&tcs r 

Money how (^ 1. It shall be lawful for the inhabitants of any town 
,"i;ii,MP'^° in such counties as have abolished the distinction be- 
tween county and town paupers, and in such countie^^ 
as may hereafter abolish such distinction, at any an- 
nual or special town meeting to appropriate all or any 
part of the moneys and funds remaining in the hands of 
the overseers of the poor of such town after such aboli- 



COMMON SCHOOLS. 419 

lion, to such objects, and for such purposes, as shall be 
determined on at such meeting. 

§ 2. If any such meeting- shall appropriate such mo- School nui.i 
ney or funds for the benefit of common schools in their 
town, the money so appropriated shall be denominated 
'• The common school fund of such town," and shall be 
luider the care and superintendence of the commission- 
ers of common schools of said town. 

5 3. If any such meeting shall appropriate such mo- ^J.'^^^Jjjg"'',j, 
ney or funds for the benefit of common schools, after be -ieiiverwj 
such appropriation shall have been made, and after the commi's'sion. 
commissioners of common schools shall have taken the *"- 
oath of office, the overseers of the poor of such towns 
shall then pay over and deliver to the said commission- 
ers, such moneys, bonds, mortgages, notes and other se- 
curities, remaining in their hands as such overseers of 
the poor, as will comport with the appropriation made 
for the benefit of common schools of their town. 

§ 4. The said commissioners of common schools may ^"''*- 
sue for and collect in their name of otTice, the money 
due or to become due on such bonds, mortgages, notes 
or other securities, and also all other securities by them 
taken under the provisions of this act. 

'^ 5. The moneys, bonds, mortgages, notes and other Permanent 
securities aforesaid, shall continue and he a permanent '"'^'''^^ ^""^ 
fund, to be denominated the common school fund of the 
town appropriating the same, the annual interest of 
which shall be applied to the support of common schools 
in such towns, unless the inhabitants of such town, in an- 
nual town meeting, shall make a different disposition of 
the whole of the principal and interest, or any part there- 
of, for the benefit of the common schools of such town. 

^ 6. The said commissioners of common schools when- i,oan» on 
ever the whole or any part of the principal of said fund j'n^o"^^! 
shall coiTie to their hands, shall loan the same on bond, 
secured by a mortgage on real estate of double the value 
of the moneys so loaned, exclusive of buildings or artifi- 
cial erections thereon. 

'J>, 7. The said commissioners of common schools may Foreclosure 
purchase in the estate on which the fund shall have '* ™°"^'*^'''''^ 
been secured, upon the foreclosure of any mortgage, and 
may hold and convey the same for the use of said fund. 

'\ 8. The said commissioners of common schools shall ini'-rcsi h.m 
reiaui the mterest of said common school fund, \vhicn 
siliall be distributed and applied to the support of com- 
mon schools of such town, in like manner as the public 



420 LAWS RELATING TO 

money for the support of common schools shall be distri- 
butecl by law. 
coQiraisBion- ^ 9. The said commissioners of common schools shall 
count anriu- account annually, in such manner and at such time as 
*"^ town officere are required by law to account, and shall 

deliver to their successors in office all moneys, books, se- 
curities and papers whatsoever, relating to said fund, and 
shall take a receipt therefor, and file the same with the 
town clerk. 



Lots reserved for the support of the Gospel and Schools, and the 
funds arising therefrom. 

The acts passed in 1789, for the sale of lands belong- 
ing to the people of this state, required the surveyor-ge- 
neral to reserve in each township, one lot for the support 
of the gospel and one lot for the use of schools in such 
township. 3d R. S. p. 242. 

The following is a list of the principal reservations of 
this nature, viz : 

One lot of 550 acres in each of the 28 townships in 
the military tract. 

Forty lots of 250 acres each in the twenty townships 
west of the Unadilla river, being 10,000 acres. 

One lot of 640 acres in each of the townships of Fay- 
ette, Clinton, Greene, Warren, Chenango, Sidney and 
Hampden, in the counties of Broome and Chenango. 

Ten lots of 640 acres each in the townships along the 
St. Lawrence. 

Sixteen lots of 640 acres each in Totten and Cross- 
field's purchase. 

In the township of Plattsburgh 400 acres were reserv- 
ed for the use of a minister of the gospel, and 460 acres 
for the use of a public school or schools in the said town 
ship. 

In the township of Benson 640 acres were reserved 
for gospel and schools. 

By an act passed in 1798, in relation to gospel and 
school lots, it is provided, sec. 3, " That the moneys 
arising from the leasing of the said lots of land as afore- 
said, and from the trespasses aforesaid, shall be applied 
to the use of schools or support of the gospel, in the ori- 
ginal townships as surveyed, in which such lots shall be 
respectively situated, and for no other purpose ; which 
said application shall be made either for schools or goe- 



COMMON SCHOOLS. 421 

|)el, or both, and in such way and manner as the free- 
holders and inhabitants of the towns in which the same 
lands shall lie, shall in legal town meeting from time to 
time direct, order and appoint." 3d R. S. p. 244. 

By an act passed in 1808, the act of 1798 was ex- 
tended to all the townships where lots of land are reserv- 
ed for the support of gospel and schools, and the follow- 
ing provision was added : 

"■§ 1. Be it ejiacted, 6,'c. That the moneys arising 
from the annual rents and profits of the gospel lots in 
each township, shall be equally divided by the supervi- 
sor and commissioners appointed in each township, be- 
tween the several religious societies legally organized in 
such township, and that the moneys arising from the 
annual rents and profits of the several school lots shall 
be distributed among the schools kept in each respective 
township by teachers to be approved of by the supervisor 
and commissioners constituted by the act to which this 
is an amendment, or a majority of them, in said town- 
ship, in proportion to the aggregate lumiber of days 
which the scholars in each respective school shall have 
respectively attended such schools in the year immedi- 
ately preceding such division." 3d R. S. p. 245. 

The fourth section of an act concerning the gospel and 
school lots, passed in 1813, is as follows: 

'••And he it further ena-cted, That the rents, issues 
and profits of the aforesaid lands, and the annual inter- 
est of the moneys arising from the sale thereof, shall bo 
applied by the said trustees for the time being, to the 
support of the gospel and schools in their several towns 
in such manner as the freeholders and inhabitants of 
the towns respectively, at their annual town meeting, 
shall order and direct, or as the legislature shall prescribe 
by law." Session Laws of 1813, p. 157. 

In 1819 an act was passed in relation to the gospel 
and school lots, which contains the following section : 

"^ 2. And he it further enacted^ That all moneys 
now due or hereafter to become due, and which shall 
have come into the hands of the aforesaid commission- 
ers of public lots, and have not been applied and paid 
over to religious societies, shall be apportioned among 
the several school districts in the several towns in the 



422 LAWS RELATING TO 

aforementioned counties,* any thing in the acts hereto- 
fore passed to the contrary notwithstanding." 3d R. S. 
p. 245. 



The following are the provisions adopted in the Re- 
vised Statutes, in relation to the gospel and school lots, 
the powers and duties of the trustees of those lots, and 
the funds arising from them : 

TITLE IV. CHAPTER XV. 1 R. S. p. 497. 

OF THE GOSPEI. AND SCHOOL LOTS. 

Sec. L Trustees of gospel or school lots, a corporation far certain pur- 
poses. 

2. Such trustees to give bond. 

3. Their powers and duties. 

4. Auditors of town to report upon accounts of trustees of gospel and 

scliool lots. 
5 &, 6. Lands and money arising therefrom, how disposed of upon 

division of town. 
7. VVhen the share of any town is to be paid to supervisor, &c. 

Trustees a ,§ 1. The trustees elected in any town in this state, 

vorporation. j^^ying Jauds assigned to it for the support of the gospel 
or of schools, or of both, shall be a corporation for the 
purposes of their office, by the name of "The trustees 
of the gospel and school lot," in that town for which 
they are elected. 

To aive ,§ 2. Before the}'^ enter on the duties of their office, 

they shall execute a bond to the supervisor of the town, 
in such penalty and with such sureties as such supervi- 
sor shall approve, for the faithful performance of such 
duties. 

rheirpew- S 3. The trustces, besides the ordinary powers of a 
corporation, shall have power, and it shall be their duty, 

1. To take and hold possession of the gospel and 
school lot of their town : 

2. To lease the same for such time not exceeding 
twenty-one years, and upon such conditions, as they 
shall deem expedient : 

3. To sell the same with the advice and consent of 
the inhabitants of the town, in town meeting assembled, 
for such price and upon such terms of credit as shall 
appear to them most advantageoijs : 

4. To invest the proceeds of such sales in loans, se- 
cured by bond and mortgage upon unincumbered real 
property of the value of double the amount loaned : 

* Note. — The counties named in the act, are Onondaga, Cayuga_and 
S«neca. See also act of 1807, p. 3"29, Session Laws of that year. 



bnpds 



ers and iln 

tIe-is 



COMMON SCHOOLS. 4'4>3 

5. To purchase the property so mortgaged upon a 
foreclosure, and to hold and convey the property so pur- 
chased whenever it shall become necessary: 

6. To reloan the amount of such loans repaid to them, 
upon the like security. 

7. To apply the rents and profits of such lots, and the 
iiiterest of the money arising from the sale thereof, (o 
i.he support of the gospel and schools, or either, as luay 
he provided by law, in such manner as shall be thus pro- 
vided : 

8. To render a just and true account of the proceeds 
of the sales and the interest on the loans thereof, and of 
i.he rents and profits of such gospel and school lots, and 
of the expenditure and appropriation thereof, on the last 
Tuesday next preceding the annual town meeting in 
«iach year, to the board of auditors of the accounts of 
«>ther town officers : 

9. To deliver over to their successors in office, all 
books, papers and securities relating to the same, at the 
expiration of their respective offices; and, 

10. To take therefor a receipt, wliich shall be filed in 
the clerk's office of the town. 

^ 4. The board of auditors in each town shall annu- Accounts. 
ally report the state of the accounts of the trustees of the 
gospel and school lots in that town, to the inhabitants 
thereof, at their annual town meeting. 

^ 5. Whenever a town having lands assigned to it for Lands oi 
the support of the gospel or of schools, shall be divided '°^" fi'vi'Jed 
into two or more towns, or shall be altered in its limits 
by the annexing of a part of its territory to another town 
or towns, such lands shall be sold by the trustees of the 
tx)wn in which such lands were included, immediately 
before such division or alteration; and the proceeds there- 
of shall be apportioned between the towns interested 
t.herein, in the same manner as the other public moneys 
of towns, so divided or altered, are apportioned. 

}^ 6. The shares of such moneys to which the towns shares to 
*;hall be respectively entitled, shall be paid to the trustees '*"'^*'"' ^^''^■ 
of the gospel and school lots of the respective towns, and 
Kliall thereafter be subject to the provisions of this Title. 

^ 7. If in either of such towns, trustees of gospel and j^ 
school lots shall not have been chosen, or there be none 
in office, the share of such town shall be paid to the su- 
pervisor; and the town, at its next annual town meet- 
ing, and annually thereafter, shall choose such trustees 
in the same manner as if gospel and school lots had ori- 



4a'4 LAW'S RELATING TO, &C. 

giually been assigned to it ; which trustees shall have 
charge of the moneys so paid to the supervisor, and shall 
be subject to all the duties and Uabilities, and possess all 
the powers imposed or conferred in this Title. 



FORMS, REGULATIONS, &eo 



RESIGNATIONS 

[Reference from Sec. 83.] 

The provision referred to in this section is as follows : 
" Any three justices of the peace of a town may, for sufficient 
cause shown to them, accept the resignation of any town offi- 
cer of their town." Sec. 33, Title III. Chap. XL 1 R. S. 348- 
They may do the same as to officers of school districts, and 
must notify the clerk, or a trustee of the district, of such resig- 
nation. 



ASSESSMENT OF TAXES. 

[Reference from Sec. 90.] 

The following are the provisions referred to in this section, and 
are extracted from Chapter XIII, Title II., which relates to the 
assessment and collection of taxes : (p. 392, 1 R. S.) 

"^ 15. If any person, whose real or personal estate is liable 
to taxation, shall at any time before the assessors shall have 
completed their assessments, make affidavit that the value of his 
real estate does not exceed a certain sum, to be specified in such 
affidavit ; or that the value of the personal estate owned by him, 
after deducting his just debts, and his property, invested in the 
stock of incorporated companies, liable imder this Chapter to 
taxation on their capital, does not exceed a certain sum, to be 
specified in the affidavit, it shall be the duty of the assessors to 
value such real or personal estate, or both, as the case may be, 
at the sums specified in such affidavit, and no more." 

",§ 16, If any trustee, guardian, executor or administrator, 
shall specify, by affidavit, the value of the property possessed 
by him, or under his control, by virtue of such trust, after de- 
ducting the just debts due from him, and the stock held by him 
in incorporated companies liable to taxation, in that capacity, 
the assessors shall in like manner value the same at the sum 
specified in such affidavit." 

"§ 17. All real and personal estate liable to taxation, the 
value of which shall not have been specified by the affidavit of 



426 FORMS AND 

the person taxetl, shall be estimated by the assessors at its full 
value, as they would appraise the same in payment of a just 
debt, due from a solvent debtor." 

After completing the assessment roll, section 19 provides that 
the assessors '"shall make out one lair copy thereof, to be left 
with one of their number. They shall also forthwith cause no- 
tices thereof to be put up at three or more pnbhc places in their 
town or ward.-' 

"^ 20. Such notices shall set forth that the assessors have 
completed their assessment roll, and that a copy thereof is left 
with one of their number, to be designated in such notice, at 
some place to be specified therein, where the same may be seen 
and examined by any of the inhabitants of the town or ward 
during twenty days ; and that the assessors will meet on a cer- 
tain day, at the expiration of such twenty days and at a place 
to be specified in such notice, to review their assessments, on the 
application of any person conceiving himself aggrieved." 

'''§, 21. The assessor w-ith whom such assessment roll is left, 
shall submit the same, during the twenty days specified in such 
notice, to the inspection of all persons w4io shall apply for that 
purpose." 

" ^ 22. The assessors shall meet at the time and place speci- 
tiedin the notice, and on the appHcation of any person conceiv- 
ing himself aggrieved by their assessment, shall review such as- 
sessment. And when the person objecting thereto, shall not 
previously have made affidavit concerning the value of his pro- 
perty, pursuant to the fifteenth and sixteenth sections of thi«; 
Title, the assessors shall, on the affidavit of such person, made 
as provided in those sections, reduce their assessments to tJie sum 
specified in such affidavit." 

'•^S 23. If the person objecting to the assessment can show by 
iXher proof than his own affidavit, to the satisfaction of the as- 
sessors, or of a majority of them, that such assessment is erro- 
neous, the assessors shall review and alter the same, without re- 
quiring any such affidavit."" 

".-^ 24. Wiiere any person in possession of personal properly 
liable to taxation, shall make affidavit that such jiroperty, or 
nny part thereof, specifying what part, is possessed by him as 
agent for the owner thereof, and shall disclose in such affidavit 
the name and residence of tiie owner, the assessors, if it shall 
appear that such owner is liable to be taxed under this Chapter, 
shall not include such personal estate in the assessment of the 
property of such possessor."' 

•■\S 25. The affidavit specified in this Article, shall be made 
l)efore the assessors, or one of them, either of whom is hereby 
fiuthorized to administer an oath for that purpse ; and the as- 



REGULATIONS. 



427 



eessors shall cause all such affidavits to be filed in the office of 
the town clerk." 



Form of a District Tax list, and Warrant, 

List of taxes payable by the following persons, taxable in* 
habitants of district No. in the town of made 

l)y the trustees of said district on the day of 

18 in conformitv to law. 



NAME. 

A. B... 
CD... 
K. F... 



Valuation ot" Personal es- 

ii'dl eslato. luie. 



.>^- 1,000 ! ,n200 
1,500 i 500 
2.000 '' 800 



Total pro- 
pie rty. 



.$'1,200 
2,000 
2.800 



Amount of 
la.\c8. 



•Se.oo 

10.00 
14.00 



Collector's 
t»>es :") per 



$0.30 
0.50 
0.70 



Total amou't 
to bo co'- 
lectcil 



$6.30 
10.50 
14.70 



CouMy of ss. 

To the collector of school district No. in the town of 

in the county aforesaid, Greeting: 
In the name of the people of the state of New- York, you are 
hereby commanded and required, to collect from each of the in- 
habitants in the annexed tax list named, the sum of money set 
opposite to his name, in said list, and witiiin thirty days after 
receiving this warrant, to pay the amount thereof collected by 
you, (retaining five per cent, for your fees,) into the hands of the 
trustees of said district, or one of them, and take his or their re- 
ceipt therefor : And if any of the said inhabitants shall not pay 
such sum on demand, you are hereby further conmianded, to 
levy tlie same by distress and sale of the goods and chattels of 
the said delinquent, in the same mafmer as on warrants issued 
by the board of supervisors to the collectors of towns. 
Given under our hands and seals, this 

day of in the year of our Lord 

one thousand eight hundred and 
A. B. [l. s.] ) 
C D. [l. s.I > Trustees. 
E. F. [l. s.] ) 
[The tax list must be made out within one month after the 
district meeting in which the tax was voted.] 



428 



FORMS AND 



Form of a District Rate Bill. 

Rate bill of the persons liable for teacher's wages in district 
No. in the town of for the school tenn 

ending ^ 18 . 



NAMES. 


No. of days 
sent. 


Amount of 
school bill. 


Collector's fees, 
5 per cent 


Total amount to 
be collecied. 


A. B 

CD 

E. F 


80 

90 

100 


$1.00 
1.121 
1.25 


$0.05 
0.05f 
0.061 


$1.05 
1.181 
1.311 



[The warrant to be annexed to a rate bill, is to be, similar in 
form to the warrant annexed to a tax list, as above, excepting 
that the words " rate bill " will be substituted for the words 
"tax list," or "list," whenever the two latter occur.] 

[In executing the warrant, the collector will be governed by 
the following sections of chapter 13, pages 397 and 398, 1 
R. S.] 

^ 1. Every collector, upon receiving the tax list and warrant, 
shall proceed to collect the taxes therein mentioned, and for that 
purpose shall call at least once on the person taxed, or at the 
place of his usual residence, if in the town or ward for which 
such collector has been chosen, and shall demand payment ol 
the taxes charged to him on his property. 

^ 2. In case any person shall refuse or neglect to pay the tax 
imposed on him, the collector shall levy the same by distress and 
sale of the goods and chattels of the person who ought to pay 
the same, or of any goods and chattels in his possession, where- 
soever the same may be found within the district of the collec- 
tor, and no claim of property to be made thereto by any other 
person shall be available to prevent a sale.* 

§3. The collector shall give public notice of the time and 
place of sale, and of the property to be sold, at least six days 
previous to the sale, by advertisements to be posted up in at least 
three public places in the town where such sale shall be made. 
The sale shall be by public auction. 

^ 4. If the property distrained shall be sold for more than the 
amount of the tax, the surplus shall be returned to the person 
in whose possession such property was when the distress was 
made, if no claim be made to such surplus by any other person. 
If any other person shall claim such surplus on the ground that 
the property sold belonged to him, and such claim be admitted 

* Note. — " No replevin shall lie for any property, taken by virtue of any warrant 
for the collection of any tax, assessment or fine, in pursiiance of any statute of this 
stale." 2d R. S. page 522, sec. 4. 



REGULATIONS. 429 

by the person for whose tax the same was distrained, the surplus 
shall be paid to such owner ; but if such claim be contested by 
the person for whose tax the property was distrained, the sur- 
plus moneys shall be paid over by the collector to the supervisor 
of the town, who shall retain the same until the rights of the 
parties shall be determined by due course of law. 1 R. S. page 
397, 398. 



Form of a Bond to he given by a District Collector. 

Know all men by these presents, that we. A. B. and C. D. 
(the collector and his surety,) are held and firmly bound to E. 
F. and G. H. &c., trustees of school district number in 

the town of in the sum of (here insert a sum dou- 

ble the amount to be collected,) to be paid to the said E. F., G. 
H., (fcc, trustees as aforesaid, or to the survivor or survivors of 
them, or their assigns, trustees of said district ; to the which 
payment, well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, firmly by these presents. 
Sealed with our seals, and dated this day of 

18 &c. 

The condition of this obligation is such, that, whereas the 
above bounden A. B. has been chosen (or appointed, as the case 
may be.) collector of the above mentioned school district number 
in the town of in conformity to the act for the 

mjpport of common schools ; now, therefore, if he the said A. B. 
shall well and truly collect and pay over, after deducting 5 cents 
on each dollar as his fees, the moneys assessed upon the taxable 
inhabitants of said district, in a rate bill or tax list dated the 
day of and this day received by the said collector, 

which assessment amounts to a total sum of dollars 

and cents, and shall in all respects duly and faithfully 

execute the said warrant, and all the duties of his ofllice as col- 
lector of such district, then this obligation shall be void, other- 
wise of full force and virtue. 

Signed, sealed and delivered, A. B. [l. s.] 

in the presence of C. D. [l. s.j 

[This bond, by section 120, is to be given whenever required 
by trustees: If not given, by section 121, the office of collector 
is vacated. By section 117, the trustees are required to deliver 
this bond to their successors.! 



430 



FORMS AND 



Form of the Apportionment of Fuel, to be tnade by Trus- 
tees, when the same has not been provided by a Tax on 
the District. [§ 94 and 95.] 

We, the trustees of district No. in the town of 

do certify that each person whose name is liereunto annexed, ii* 
hable to provide the proportion of fuel set opposite his name, for 
the use of the school in said district, viz. 

Names. No, of children sent. Amount of wood. 

A. B. ^2 children, 1 cord. 

C. D. 4 « 2 " 

E. F. 6 '< 3 " 

Given under our hands at this day of IS 

Trustees. 

[This apportionment should be recorded by the clerk of the 
district, and in case of the delinquency of any inhabitant, no- 
tice should be given to him by one of the trustees, as required 
in section 96.] 

[To enable the trustees to make this apportionment before the 
close of the school term, the}^ can ascertain the number of chil- 
dren which each inhabitant proposes to send, or from the best 
evidence in their power, and make an equitable adjustment of 
the apportionment, when the term closes.] 




Form, of a District Report to be inade by the Trustees to th-e 
Commissioners of Com,mon Schools. 

To the commissioners of common schools of the town of 
We, the trustees of school district number in said town, 

in conformity with the statute for the support of common schools, 
do certify and report, that the whole time any school has been 
kept in our district, during the year ending on the date hereof, 
and since the date of the last report for said district, is [here in- 
sert the whole time any school has been kept in the district 
.s'chool-house, although for a part of that time it may have 
been kept by teachers not approved by the inspectors,] and 
that the time during said year and since said last report, such 
•school has been kept by a teacher [or teachers, as the case may 
be] duly appointed and approved in all respects according to law 
is [here insert the same with precision.] That the amount of 
money received in our district from the commissioners of com- 
mon schools, during the said year, and since the date of the 



REGULATIONS. 431 

«aid last report, is [here iyiserl the whole amount, although 
7/ 'may have been received hi irhole or in pari by predecessors 
in office,] and that the said sum hasi been apjDlied to the pay- 
ment of the compensation of teachers employed in said district, 
and qualified as the statute prescribes. That the number of 
children taught in said district, during said year and since said 
last report, is [here insert the same, not by conjecture, but by 
reference to the teachers list, or other authentic soiirccs.] — 
And that the number of children residing in our district on the 
last day of December last, who are over tive, and under sixteen 
years of age, is [here insert the number, taking in such only 
as pcr^nanently resided in the district on the last day of De- 
cember, and loho were then over Jive and nnder sixteen years 
of age, [and that the names of the parents, or other persons 
with whom such children respectively reside, and the nimiber re- 
siding with each, are as follows, viz : 

Parents, t^T. No. of cJiildrcn. 

A. B. « ''• " 5 

C. D. '' " " 3 

E. F. " " " 2 

And we further report, that our school has been visited by the iti- 
spectors of common schools, or one of them, during the year pre- 
ceding this report, [once in each qvarler, or more, or less, or 
not at all, as the cose may bn] and that the simi paid for teach- 
ers' wages, over and above the public t)ioneys apportioned to 
said district, during the same year, amount to .^ cents. 

[This blank is to be filled inith the sum total of all the school 
bills for the year which are made out after ajyplying the 
■'^chool money to the payment of teachersi' wages.\ 

Dated at this first day of January, in the year of 

our Lord one thousand eight hundred and 

Triisteci. 

[The trustees should hand this report to the town clerk, on 
or before the first day of March. Sec. 104, 105.] 




Form of a District Report, where the District is formed ant 
of two or more adjoining Towns. 

To the commissioners of common schools of the town of 

We, the trustees of school district number fornjed part- 



432 FORMS AND 

!y out of the said town, and partly out of the adjoining town 
of do, in conformity with the statute for the support of 

common schools, certify and report, 

That the whole time any school has been kept in our district, 
during the year ending on the date hereof, and since the date of 
the last report for said district, is [here insert the whole time any 
school has been kept in the district school-house, although for 
a part of that time it may have been kept by teachers not ap- 
proved by the inspectors,] and that the time during said year 
and since said last report, such school lias been kept by a teacher 
[or teachers, as the case may be\ duly appointed and approved 
in all respects according to law, is [here insert the same with 
precision.] That the total amount of money received by said 
district, from the commissioners of common schools of the re- 
spective towns out of which said district is formed, since the date 
of the last annual report of said district, is [here insert the 
whole amount, although it may have been received in whole 
or in part by predecessors in office.] And that the said sum 
has been applied to the payment of the compensation of teach- 
ers employed in said district and qualified as the statute pre- 
scribes. That the number of children taught in said district 
during said year, and since said last report, is [here insert the 
same, not by conjecture, but by reference to the teacher's list, 
or other authentic sources.] And that the number of children 
residing in our district on the last day of December last; who 
are over five, and under sixteen years of age, is [here insert the 
number, taking in such only as permanently resided in the 
district on said day and who were then over five and un- 
der sixteen years of age,] and that the names of the parent?, 
or other persons with whom such children respectively reside, 
and the number residing with each, areas follows viz: 

Parents, 4'c. No. of Children. 

A. B. " " " 5 

C. D. " " " 3 

E. F. " " " 2 

And we do further specify and report, that of the said sum of 
money, so as above stated to have been received in our said dis- 
trict, the sum of [here state the same] was received for and on 
account of that part of said district lying in the said town of 
and the sum of for and on account of the other part there- 

of, lying and being in said town of That of the said child- 

ren, so as above stated to have been taught in our said district, 
the number belonging to that part of said district lying in the 
said town of is and that the number belonging to 

the other part thereof, lying in the said town of is 



REGULATIONS, 433 

That of the said children, between the said ages of five and six- 
teen yeafiJ:, so as above stated to reside in our district, the num- 
ber residing in that part of said district lying in the said town ot 
is and that the number residing in the other part 

thereof, lying in said town of is And we further re- 

}X)rt, that our school has been visited by the inspectors of com- 
moil schools, oi- one of them, during the year preceding this re- 
port, [o7ice in each quarter^ or morc^ or less, or not at all, as 
the case may 6e,] and the sum paid for teachers' wages, over 
and above the public moneys apportioned to said district, during 
the same year, amounts to % cents, of which sum 

dollars cents were paid by that part of the district lying in 

the towji of and dollars cents by the part lying 

in the town of \This blank is to be filled with the sum to- 

tal of all the school bills fjr the year which are m,ade out af- 
ter apjdying tlie school money to the payment of teachers' 
wages..\ 

Dated at this first day of January, in the yeaT of our 

Lord one thousand eight hundred and 

A. B. ) 

<J. D. \ Trustees. 

E. F. S 

N. R A copy of the report must be sent to the commissioners 
or clerk of each town out of which the district Is formed- 



DISTRICT MEETINGS. 

1. Annual meetings are adjourned from year to year, and no- 
tices in the second form which follows, are to be posted up by 
the clerk, in four public places in the district, five days before 
the annual meeting. 

2. Special meetings are called by order of the trustees, and 
every taxable inhabitant should be notified of the time, place 
and object of such meeting, at least five days before it is held, by 
reading the notice in his hearing, or leaving a copy thereof at hi-- 
place of abode. Sec. 56 and sub. 2 of 84. 

3. If any district meeting is adjourned for more than one 
month, the clerk must post up notices in four public places, at 
least five days before the day on which such adjourned meeting 
is to be held. Sec. 84, sub. 3. 

4. A special meeting should not be called without notice to all 
the trustees, who should confer fx)gether, and a major part of 
them should sanction the order of the clerk to call a special meet- 
ing. The notice for a special meeting should specify the object, 

28 



434 FORMS ANI> 

as well as the time and place of the meeting, if the clerk can- 
not give notice for annual or special meetings, either of the trus- 
tees may do the clerk's duty in this particular. Sec. 85, sub. 2, 



Fbrmjof Notice for a Special District Meeting. 

To the clerk of district number 

The trustees of district number at a meeting held for 

the purpose^ have resolved that a special meeting be called at 
the school-house,^ on the day of 18 at 

o'clock in the noon of that day, for the purpose of [choosing 
(I collector in place of A. B. removedy or whatever the object of 
the meeting may Z>e,] and for the transaction of such other bu- 
siness as the meeting may deem necessary. 

You will therefore notify each taxable inhabitant of the dis- 
trict, by reading this notice in his hearing, or if he is absent 
from home^ by leaving a copy of it, or so much as relates to the^ 
time and place of meeting, at the place of his abode, at least five 
days before such meeting. 

Dated at this day of 18 

A. B. ) 

C. D. V Trustees. 
(fcc. \ 



Form of Notice for <m adjourned District Meeting, to be 
posted up in the District. 

SCHOOL DISTRICT NOTICE.. 

Notice is hereby given,^ that a meeting of the freeholders anJ 
inhabitants of this school district, authorized by law to vote there- 
in, will be held at on the day of next, (or in- 
stant, as the case may be,) at o'clock m the noon, 
pursuant to adjournment. Dated at school district number 
in the town of this day of A. D. 18 

A. B. District Clerk. 

N. B. If it be the atinual meeting, it should be so termed irs 
the notice. 

t^ These notices are to be posted up in four of the most 
public places in the district, at least five days before the annual, 
or any other meeting which has been adjourned for more than 
one month. Sec. 84, sub. 3. 



REGULATIONS. 435 

Form of Minutes to be kept by the District Clerk, of Pro- 
ceedings of District Meetings. 

At a meeting- of the freeholders and inhabitants of school dis- 
trict number in the (own of held pur- 
suant to adjournment, at on the day of 
18 [or if it be the annual meeting, say, " at an annual 
meeting of ^c, held pursuant to appointmetit and public 
7totice^ at," ^'c. Or if it be a special meeting, say, " at a 
special meeting of, ^c, called by the trustees of said district, 
and held pursuant lo special notice, at, <^'c., on the 
day of," (fcc] A. B. was chosen moderator, and C. D. 
was present as district clerk, (or if the cleric be not present, say 
E. F. was appointed clerk pro tem.) 

Resolved unanimously, {or by a majority of votes present, 
as the case may be.) here enter the proceedings of the district 
in the form of resolutions, and with as Ttiuch precision and 
certainty as possible. 

Let the minutes of the proceedings always be signed by the 
moderator and clerk, in the district book. 



ALTERING SITE OF SCHOOL HOUSE. 

In order to change the site of a school house, where the dis- 
trict has not been altered, as provided by section 70, (fcc, it is ne- 
cessary, 

L To obtain the written consent of a major part of the com- 
missioners of the town, or of each town to which the district 
belongs. 

2. To call a special meeting, in the notification of which the 
purpose of the meeting shall be stated. 

3. To obtain the concurrence of two-thirds of the qualified 
voters of the district, when thus specially called together. 

4. To have the vote taken by ayes and noes, and the name 
of each person, and the vote he gave, taken and recorded. 

In taking the vote by ayes and noes, it will be necessary for 
the clerk to make a list of the names of the voters present, with 
two columns at the end of the names, one headed '-'aye" and 
the other '• no." 

To ascertain the ayes and noes, the names are called over, 
and if the voter is in favor of the motion, a mark is made op- 
posite his name, under aye— if against it, a like mark is made 
under no. Thus : 



436 



FORMS ANIT" 



Aye. 


No. 


4 


2^ 



Mr. Morehouse 
Mr. Curtis, . . . 
Mr. Budd,.... 
Mr. Carroll, . . . 

Mr. Bettis, 

Mr. Hough,. . . 



The clerk will record these proceedings in the district book, in 
the following form: 

At a meeting of the freeholders and inhabitants of district 
number in the town of held at the school- 

house in pursuance of notice to all the taxable inhabitants of 
said district, on the day of A. B. was chosen 

moderator, and C. D. was present as district clerk, (or E. F. was 
appomted clerk pro tern.) The written consent of the commis- 
sioners of common schools having been read, stating that in their 
opinion the removal of the site of the school-house in said dis- 
trict is necessary : And the subject having been submitted to the 
meeting, and the question taken by ayes and noes, it was car- 
ried, (or lost) two-thirds of all those present at such special meet- 
ing having [or not, as the case may be,] voted for such removal, 
and in favor of such new site : Those who voted in the affirma- 
tive, were Mr. Morehouse, Mr. Budd, Mr. Carroll and Mr. 
Hough ; those who voted in the negative, were Mr. Curtis and 
Mr. Bettis. 

Ayes 4. Noes 2. 

[In stating the ayes and noes, the christian names of the vo- 
ters should be given.] 

After changing the site of the school-house, iii the manner be- 
fore prescribed, the voters of the district, at the same or any sub- 
sequent meeting, may pass a resolution, by a majority of those 
present, in the ordinary mode, directing the trustees to sell the 
house, according to sec. 73. 



COMMISSIONERS AND INSPECTORS. 

The following provisions, which relate to the commissioners 
and inspectors of common schools, are extracted from chapter 
XI. " Of the powers, duties and privileges of towns." 

Commissioners of common schools must be electors of the 
town for which they are chosen. Sec. 1, Title III. chap. XI. p. 
345, 1 R. S. 



R^EGULATIONS. 437 

" Every person chosen commissioner or inspector of common 
schools, before he enters on the duties of his office, and within 
ten days after he shall be notified of his election, shall cause to 
be filed in the office of the town clerk, a notice in writing, sig- 
nifying his acceptance of such office." Sec. 17, ib. 

"If any person chosen or appointed to either of the offices 
joamed in the last section, shall not cause such notice to be filed, 
such neglect shall be deemed a refusal to serve." Sec. 18, ib. 

" If any person chosen commissioner or inspector of common 
schools, shall refuse to serve therein, he shall forfeit for the use 
of the town, the sum of ten dollars." Sec. 26, ib. 

"In each town, the supervisor and town clerk, together with 
the justices of the town, or any two of such justices, shall con- 
stitute fL board of auditors to examine the accounts of the over- 
seers of the poor, the commissioners of common schools, and 
the commissioners of highways of such town, for moneys re- 
ceived and disbursed by them." Sec. 46, Title 4, ib. p. 355. 

"The board of auditors of town accounts shall meet for the 
purpose of examining the same annually in each town in this 
state, on the Tuesday preceding the annual town meeting to be 
held in such town." Sec. 47, ib. 

" The electors of each town shall have power, at their annual 
town meeting, to establish the compensation of the fence view- 
ers, inspectors of common schools, and collector of such town." 
[Sub. 9, of sec. 5, chap. 11. p. 340, 1 R. S. and sub. 2 of same 
chap. p. 356; amended by chap. 320. Session Laws of 1830, 
p. 384.] 

Commissioners of common schools are allowed one dollar per 
day. See page 418, § 5. 



School Money to he raised by Town. 

The electors of each town, at their annual town meeting, 
have power, 

"To direct such sum to be raised in such town, for the support 
of common schools for the then ensuing year, as they may deem 
necessary : but not exceeding a sum equal to the amount re- 
quired by law, to be raised therein for that purpose." P. 340, 1 
R. S. A special meeting may be called for this purpose, when 
twelve persons eligible as supervisors, make application in writ- 
ing to the town clerk. 1 R. S. p. 341, sec. 7. 



438 FORMS AND 

Recoveries against Commissioners and Trustees, 

" ^ 108. In suits by and against loan-officers, commissioners 
of loans, commissioners of common schools and commissioners 
of highways, trustees of school districts and trustees of gospel 
and school lots, the debt, damages or costs recovered against 
them shall be collected in the same manner as against individu- 
als; and the amount so collected shall be allowed to them in 
their official accounts." 2 R. S. p. 476, sec. 108. 

[Trustees of districts will bear in mind that this section does 
not apply to the school money received from the commissioners, 
as that must be paid for tuition according to the 24th section, to 
entitle the district to its apportionment for the next year. And 
all officers through whose hands the common school inoneys 
may pass, will see that it is the intention of the statute relating 
to common schools, that the sum apportioned from tlie state 
treasury, together with the corresponding sum raised by tax upon 
the towns, shall be paid to the trustees of districts, and by those 
officers to approved teachers, without any diminution or diver- 
sion, under any pretence whatever. The school money cannot 
be applied for repairing school-houses, paying the fees of officers, 
or indemnifying them for costs incurred in the discharge of their 
official duties. All questions in regard to the public money may 
be submitted to the superintendent, and decided without cost to 
either party. 

The foregoing section of the Revised Statutes, so far as com- 
missioners and trustees of common schools are concerned, must 
have reference to recoveries connected with the local securities in 
the hands of commissioners, and those growing out of the con- 
tracts made by trustees of districts ; in all such cases the 108th 
section is to be regarded as directory to the town auditors in set- 
tling the accounts of commissioners, and to the district meetings 
in settling the accounts of trustees. But in no case can such 
audit justify an application of the school moneys to any other 
purpose than the payment of the wages of certified teachers.] 



COMMISSIONERS OF SCHOOLS. 

Form, of Proceedings of Commissioners in Relation to Form- 
ing and Altering School Districts. 

[In altering districts, the commissioners must be notified, and hold a meeting, and 
all proceedings in relation to a joint district, must have the approbation of at least 
two of the commissioners from each town, out of which the district is formed.] 

" The commissioners of common schools of the town of 
having met at the house of in said town, in pursuance of 



REGULATIONS, 439 

previous notice to each of said commissioners, do hereby adopt 
the following resolution in relation to the division of said town 
into school districts, viz : 

"Resolved unanimously, \vr by a major part of the com- 
missioners^ as the case may 6e] that district No. 1 shall con- 
sist of lots No. 1, 2, 3, and 4 ; district No. 2, of lots No. 5, 6, 
4fec. \liere the boundaries of the district should be fully set 
forth ; and where the district is described by giving the names 
of inhabitants, the addition should be made of the land oc- 
cupied by the several persons named. This will prevent ca- 
vil in case the occupancy is changed. Where an individual 
is transferred from one district to another ^ the resolution 
ought to express ichether it was done ivith or without his con- 
nent ; as this fact is material in case he claim,s an exemptioti 
from, tax under ^ 81. In altering a district^ the consent of 
the trustees should be annexed to the resolution of the com,- 
missioncrs, as follows r] 

" We consent to the above alteration of district No. 
Dated 

A. B. ) 

C. D. } Trustees.'' 

E. F. 5 

[If the trustees, or a major part of them, will not consent, 
then the commissioners should give notice, in writing, to one or 
more of them, setting forth the alteration made, viz :] 

" To the trustees of school district No. 

■' Please to take notice, that we have this day altered your 
school district in the following manner, [here give a particular 
description of the alteration] and that said alteration will take 
effect after thiee months from the service of this notice. 
" Dated at this day of 18 

A B. / Commissioners of 
C. D. \ Common Schools.^' 

[This notice, or the consent of the trustees, should form a 
part of the description which is given to the town clerk for re- 
cording ; and if it is the notice, a commissioner should annex 
his certificate, that a copy of the notice was duly served on one 
of the trustees, giving the date of such service.] 

[Whenever a new district shall be formed, one or more of the 
commissioners must prepare a notice in the following form, di- 
rected to one of the taxable inhabitants of the district, viz :] 

" To a taxable inhabitant of district No. 

Sir- 
By virtue of the 56th and .57th sections of the statute relating 



440 FORMS AN1> 

to common schools, you are hereby required to nottfy (by read- 
ing this notice in bis hearing-, or in case of his absence from 
home, by leaving a copy thereof, or so much as relates to the 
time and place of meeting, at the place of his abode,) each of 
the taxable inhabitants residing in district No. and de- 

scribed as follows, viz : [here give the boimds and deseription 
of the distinct] to meet at in the town of on the 

day of at o'clock in the noon, to elect district 

officers, and to transact sucb other business as may be necessa- 
ry in the organization of said district. 
Dated at this day of 18 

A. B. Commissioner.'' 

[In forming a district from two or more towns, the above no- 
tice should be signed by one commissioner from each town.] 

il3^ When the comn>issioner& form a new district, and ap- 
praise the school-house, according to sections 77 and 78 they 
are to distribute the appraised value of the school-house in the 
same maimer as the trustees of the district would apportion the 
like sum if it was a tax upon the several inhabitants of the dis- 
trict. 

Having in this way ascertained the amount due to those set 
oft' as tiieir portion of the school-house, and other property, the 
commissioners should make out an oi^der to the trustees of the 
district retaining the school-house^ as follows : 

To the trustees of district No. in the town of 

We, the commissioners of common schools of said town, hav- 
ing formed a new district,^ to which certain persons belonging to 
your district have been attached, and having valued the school- 
house and other property belonging to said district No. at 
150 dollars, do determine that the amount justly due to such 
Jiew district is fifty dollars, apportioned to the several persons set 
oft: as follows: To A. B. 20 dollars, C. D. 1.5 dollars, E. F, 10 
dollars, G. H. 5 dollars. 

You are therefore, according to the statute relating to com- 
mon schools, to levy and collect the said sum of fifty dollars, 
from the taxable inhabitants remaining in district No. af- 

ter the alteration alluded to, and pay the same to the trustees? of 
said new district No. 

Given under our hands at this day of 18 

p' y^' ' Commissioners. 



REGULATIONS. 



441 



Form of the Annual Report of the Commissioners of Com- 
mon i^'chools. 

To the Superintendent of Comnnon Schools of the State of 
New-York. 

We, the commissioners of common schools of the town of 
in the count}^ of in conformity to the statute in relation to 

common schools, do report: That the number of entire school 
districts in our town, organized according to law, is [eight] and 
that the number of pans of school districts in said town, is [five] 
that the number of entire districts from which the necessary re- 
ports have been made for the present year, within the time limi- 
ted by law, is [eight] and that the number of parts of districts 
from which such reports have been made, is [,^ve.] That from 
the said reports, the following is a just and true abstract, viz : 



1 


'%i4 


Whole 


length 


Length r 


if time 




S 


t'Z 


~ 61-° 1 


■9 ? 




K-t^ 


of tin 


c any 


such 


school 


Amount 


— 












school has] 


has he 


•n kept 


of money 


•3 


'~ = 




c « — 






bf-en 


kept 


by approve,! 


received 


'-' . 


'-' z 








• " > 

—_ c, » 


there 


n. 


teach 


;rs. 




c Tc 


O 1- 




-II 




- J - 












V 3 


o" '-• 1 g S^ S 


o'i^ 




c-5i 


Mona. 


Days. 


Mons. 


Days. 


Dols. Cts. 


Z 


SC S 1 < 


y. 


No. 


1 


6 




3 




10 30 


48 


34 


.$20 60 


2 




2 


4 




4 




17 88 


46 


59 


25 50 


3 


W 


3 


8 


12 


8 


12 


1.5 76 


77 


52 


23 30 


4 




4 


8 




4 




21 51 


85 


71 


30 15 


1 


X 


5 


6 




6 




21 21 


73 


70 


30 20 





&- 


6 


4 




4 




16 06 


50 


,53i 20 10 


3 


Q 




4 




4 




a 51 


50 


38, 16 OOj 


4 




8 


9 


12 


4 




14 54 


52 


48 19 171 


2 




9 


10 


6 


10 


6 


9 70 


33 


32, 12 40 


1 


a - 

at (r- 


10 


6 




3 




4 .551 12| 15 


10 25; 


3 


11 


6 




6 




8 48 


28 


30 


13 00 


4 


12 


3 


5 


3 


5 


8 18 


26 


26 


14 00 


1 


"^ a 


13 


8 




8 

1 




8 79 


34 


29 


10 70 


2 


Total. 


13 


83 


5 


1 ,., 
1 bo 


23 


168 47 


614 


557 


245 37 


30 



And we, the said commissioners, do further certify and re- 
port that the whole amount of money received by us, or our 
predecessors in office, for the use of common schools, during the 
year ending on the date of this report, and since the date of the 
last report, for our town, is $ of which sum the part re- 

ceived from the county treasurer is % the part from the 

town collector is $ [and if there he any other source from 



442 FORMS AND 

which any part has been received^ here state it particularly. "\ 
That the said sum of money has been apportioned and paid to 
the several districts from which the necessary reports were re- 
ceived by the commissioners. That the school books most in 
use in the common schools in our town, are the following, viz : 
[here specify the priiicipal books used.] 

Dated at the first day of July, in the year of our Lord 

one thousand eight hundred and 

A.B. ) 

C. D. > Cotmnissioners- 

B.F.) 

tcS' The commissioners, in making their annual report should 
be careful when they make the abstract of districts formed from 
two or more towns, to include in the report of their town, only 
such of the children between five and sixteen and those taught, 
as reside in that part of the district belonging to the same town, 
for which the commissioners are making their report. And in 
putting down in the commissioners' report, the amount paid for 
teachers' wages, over and above public money, the same rules 
should be observed, 

[The above report must be made and transmitted to the coun- 
ty clerk, between the first day of July and the first day of Au- 
gust in each year. The columns of figures should be added up 
by the commissioners. The county clerk, between the first of 
August and the first of October, should transmit to the Superin- 
tendent of Common Schools, a report containing a list of the 
towns in his county, distinguishing the towns from which the 
necessary reports have beenmade to him, together with a certi- 
fied copy of all such reports.] 



INSPECTORS OF COMMON SCHOOLS. 

1. Three inspectors are required to sign the certificate for a 
teacher : And three should hold a meeting for the examination 
of a teacher. 

2. The commissioners are, by virtue of their otfices, authoriz- 
ed to act as inspectors. 

3. Teachers are required to be inspected and to obtain certifi- 
cates every year. 

4. It is the duty of inspectors to visit each school at least once 
in each year. 

5. The inspectors are allowed such compensation as may^ be 
decided upon by a vote of the town meeting. [See page 437.] 



REGULATIONS. 443 

Form of a Certificate to be given to a Teacher. 

We, the subscribers, inspectors of common schools for tlie 
town of in the count}' of Do Certify, that at a 

meeting of the inspectors, called for that purpose, we have ex- 
amined [here insert the name of the teacher) and do believe 
that he {or she, as the case may he) is well qualified in respect 
to moral character, learning and ability, to instruct a common 
school, in this town for one year from the date hereof. 

Given under our hands, at this day of 18 

A R ^ 

r r» ( -'^^"^f 6c^or5 of Com- 
p' p* I mon iS'chools. 



APPEALS. 

The Superintendent of Comm,on Schools has prescribed the 
following- Regulations, to be observed in cases of appeal 
to him. 

1. All appeals must be presented within 30 days after the 
making of the decision complained of; unless sufficient excuse, 
on oath, be shown for not making the appeal within the time 
prescribed. 

2. It is recommended to the parties in all cases of appeal, to 
agree upon a statement of facts to be signed by the parties in- 
terested, and presented to the superintendent for his decision 
thereon. 

3. If the parties cannot agree upon a state of facts, the party 
appealing must present his case upon affidavits, a copy of which 
affidavits, with notice of the time when the appeal will be pre- 
sented, must be served on the commissioners or trustees, whose 
decision is appealed from ; or if the appeal is from the decision 
of a district meeting, then on the trustees or clerk of the district, 
at least ten days before the time of presenting the appeal : and 
proof of such service must be made by affidavit or otherwise, at 
the time of presenting the appeal. And all facts in opposition to 
the appeal, must be presented by the party opposing, by affidavit 
or on oath, and copies of such affidavits must be served on the 
appellant. 

4. It shall not be necessary for either party to appear personal- 
ly before the Superintendent on the appeal : but such appeal may 
be by letter, enclosing the state of facts, agreed upon by the 
parties ; or the notice and affidavits on which the appeal is found- 



444 FORMS AND 

ed, with the evidence of the regular service thereof ;^ and either 
party may suggest in writing, any reasons for or against such 
appeal, arising out of the facts agreed upon, or appearing frorp 
the affidavits. 

5. Where the appeal has relation to the formation or altera- 
tion of a school district, it must be accompanied by a ma.p, ex- 
hibiting the site of the school-house, the roads, the old and new 
lines of districts, the different lots, the particular location and 
distance from the school, of the persons aggrieved, and their rcr 
lative distance, if there are two or more school-houses in ques- 
tion. Also, a list of all the taxable inhabitants in the district or 
territory to be affected by the question ; the valuations of their 
property, taken from the last assessment roll, and the number 
of children between five and sixteen belonging to each person : 
distinguishing the districts to which they respectively belong. 

6. After copies of the appeal in any case have been served, 
all proceedings, from the operation of which relief is sought by 
the appeal, will be suspended until the case is decided. 

7. Where the commissioners discover errors in the reports of 
trustees, which are obviously defects in form merely, they should 
afford the trustees an opportunity of amending their report, and 
then pay the district its distributive share of the school money, 
if the facts as set forth in the amended report warrant it. 

8. Where the decision of commissioners is appealed from in 
relation to the distribution of the public money to the several dis- 
tricts, they ought to retain the money which is in dispute, until 
the appeal is decided. 

JOHN A. DIX, 
Superintendent of Common Schools, 



INDEX TO DECISIONS. 



ACADEMY. 
See Children, 6. 

ACCOUNTS. 
See Commissioners of Common 
Schools, 9, 10, 11. 
Trustees, 1, ?5. 

ADJOURNMENT. 
See Annual Meetings, 10, 11. 

ADMINISTRATORS. 
See Taxation and Taxes, 47. 

AGENT FOR TOWN. 
See Town Funds and Lands, 5. 
AGENT OR SERVANT. 
See J^on- Residents, 1, 2, 4, 5, 7, 

8,11. 

ALBANY. 
See Evening Schools. 

ALIENS. 

1. Aliens may vote at district meet- 

ings, 76 

2. An alien cannot be an officer 

of a school district, 147 

ALTERATIONS IN SCHOOL 
DISTRICTS. 

1. If trustees consent verbally to 

an alteration in their school 
district, the proceedings will 
not be set aside for want of a 
written assent, 59 

2. Persons attached to a school dis- 

trict without the cnsent of 
the trustees, may within three 
months be set off again with- 
out the consent of such trus- 
tees, 65 

3. Alterations ought not to be made 

in school districts when the 
effect is to give particular in- 
dividuals unjust advantages in 
I respect to others, 75 

4. Improper alterations in school 

districts will not be sanctioned 
for the purpose of quieting 

controversies, 104 

B. An inhabitant being set off from 
a school district, it is an alter- 
ed district, and the site of the 



school house may be changed 

by a majority of votes, 147 

6. If two farms are set off from 

one school district to another, 
and contain within them a 
third not included in the order 
of the commissioners, the lat- 
ter must nevertheless go with 
them, 166 

7. Persons set off from a school 

district without the consent of 
the trustees, do not cease to 
belong to it until three months 
after notice in writing to the 
trustees, 212 

8. If an alteration is made in a 

school district, without the 
consent of the trustees, and 
without the knowledge of the 
parties interested, an appeal 
to the Superintendent will be 
allowed after three months,. . 227 

9. If a school district is altered, 

the site of the school-house 
may be changed by a majority 
of votes, and without the con- 
sent of the commissioners of 
common schools, 272 

10. An alteration in a school dis- 
trict, made without evidence 
of the consent of the trus- 
tees, or notice to them, will 
be held not valid, if all con- 
cerned have for five years act- 
ed as though it had not been 
made, 275 

11. Trustees of school districts 
should not give a general con- 
sent before hand to alterations 
to be made in their school dis- 
tricts, but such consent should 
be limited to specific altera- 
tions 320 

See Commissioners of Common 

Schools, 8. 
Joint School District},, 1, 

2, 3. 
JVotice, 3, 6, 16, 19. 
Records, 2, 5. 



446 



fNDEX TO DECISIONS. 



See School District, 6, 9, 13, 14. 
Superintendent, 6. 

ANNUAL TOWN MEETENG. 
See Commissioners of Common 
Schools, 20. 

ANNUAL REPORTS OF TRUS- 
TEES. 

1. If the annual report of the trus- 

tees of a school district is 
furnished before the public 
moneys are apportioned by the 
commissioners, it is in time, 9 

2. The annual report of school dis- 

tricts should be made out by 
the 1st of March, 155 

3. If trustees neglect, without 

good cause, to make their an- 
nual report before the appor- 
tionment of the school mo- 
neys, they are without reme- 
dy, 155 

4. If the annual report of a school 

district includes part nf two 
years, it is a false report, .... 213 

5. If the annual report of a school 

district is lost, and the district 
does not receive the public 
money, application mast be 
made to the Superintendent 
of Common Schools, to have 
the deficiency supplied out of 
the moneys to be distributed 
the next year 236 

6. If the annual report of a school 

district is received by the com- 
missioners before the public 
moneys are distributed, it is 
in time, and the district should 
be included in the apportion- 
ment, 296 

7. If the annual report of a school 

district is signed by t ^ o trus- 
tees, the commissioners can 
look no further, and the dis- 
trict must receive its share of 
the public money if the report 

is otherwise sufficient, 327 

See Children, 6, 10. 

Errors and Omissions, 3, 5, 
Indian Children. 
Poor-Hotises, 1. 
Public or School Moneys, 1 , 

11. 
Trustees of School Districts, 

22. 

ANNUAL MEETINGS. 
1. If an annual meeting in a school 
district is neglected, the trus- 
tees hold over until the next 
annual meeting, and until oth- 



ers shall be elected in their 
places, * 49"" 

2. If an annual meeting is held at 

the time and place appointed 
at the annual meeting of the 
preceding year, it is valid, al- 
though the clerk of the district 
may have neglected to give 
the notice required by law,. . 70' 

3. If the time for the annual meet- 

ing is unknown, application 
should be made to the Super- 
intendent to fix a day for hold- 
ing it, 103 

4. If the annual meetint; is void, 

the persons in oflice hold over; 
but the commissioners of com- 
mon schools cannot, in such a 
case, call a meeting or appoint 
officers, ., 114 

5. The clerk of a school district 

cannot designate a place for 
an annnal meeting when it has 
been omitted at the previous 
annual meeting, 129" 

6. Two meetings being held at dif- 

ferent places on the same day 
as an annual meeting, a new 
one will be ordered,- 129' 

7. If at an annual meeting a rea- 

sonable time is not allowed to 
the inhabitants to assemble, a 
new meeting will bi» ordered, 1?! 

8. The time an(l place for the an-. 

nua! meeting not having been 
fixed, it may be held at the 
usual time and place 141 

9. If the annual meeting in a school 

district is neglected, the dis- 
trict officers hold over until the 
next annual meeting, 241' 

10. If an annual meeting is regu-- 
larly called and attended by 
only four persons,- who, with- 
out organizing, agree to meet 
again in a week, the second 
meeting is not valid, .-.. 271 

11. If an annual meeting is regu- 
larly called and attended by 
four persons, who organize, 
and without transacting any 
other business adjourn for a 
week, the proceedings are va- 
lid, and the annual election 
may be held at the adjourned 
meeting, 271 

12. Annual meetings need not be 
precisely one year apart to a 
day, 289 

SeeJ\rotice, 17. 

Taxation and Taxes, 20. 



INDEX TO DECISIONS. 



447 



APPARATUS. 
See Taxation and Taxes, 54. 

APPEALS. 

1. An appeal to the Superinten- 

dent will not be entertained 
svhen the point at issue has 
been settled by an adjudica- 
tion upon the same case in a 
court of competent jurisdic- 
tion, 3 

2. Appeals must be made by per- 

sons aggrieved, . 57 

'{. The regulation of the Superin- 
tendent requiring an appeal to 
be made within thirty days af- 
ter the proceeding complain- 
ed of, is not to be enlbrced 
against an aggrieved party hav- 
no knowledge of such proceed- 
ing 162 

4. If within thirty days after pro- 
ceedings complained of, notice 
of appeal is served and the pa- 
pers transmitted to the Super- 
intendent, it is a sufficient 
compliance with the regula- 
tion, and ten days wiU be al- 
lowed to the respondents to 
answer, after the service of 

such notice, 343 

See Alterations in School Dis- 
tricts, 9. 
.Assessment of Taxes, 2. 
Commissioners of Common 

Schools, 8, 17. 
Irregularity, 1. 
Property of School Districts, 

12. 
School Districts, 3. 
Superintendent, 7. 
'Taxation and Taxes, 7-i. 
Void proceedings, 1. 
Votes and Voters, 6. 

Ar-PENDAGES TO A SCHOOL- 
HOUSE. 

1 . A bell is not a necessary appen- 

dage to a school-house and 
cannot be provided by a tax, 28 

2. A fence is a necessary appen- 

dage to a school-house, 235 

•See Taxation and Taxes, 4, 57. 

APPRAISEMENT OF SCHOOL- 
HOUSE. 
See JVotice. 5. 

Property of School Districts. 

ASSESSORS OF TOWNS. 
See Taxation and Taxes, 64, 67 

ASSESSMENT OF TAXES. 
1. Trustees in assessing taxes may 



administer an oath when a re- 
duction is claimed 96 

2. If the assessment of a tax is de- 
layed by an appeal, the time 
is not to be computed as part 
of the month within which the 
tax list must be made out,. . . 304 

See Assessment Moll of Town. 
JVotice, 4, 5. 
Taxation and Taxes. 

ASSESSMENT ROLL OF TOWN. 

1. The assessment roll kept by the 

town clerk is the one to be 
followed in assessing taxes,. . 154 

2. If an individual acquires or parts 

with property after the last as- 
sessment roll of the town is 
made out, the roll must not be 
followed in making out a tax 
list, V 158 

3. Where improvements in real 

estate have been made and 
completed since the last as- 
sessment roll of the town was 
made out, the roll is not to be 
followed, so far as such real 
estate is concerned, 194 

4. The assessment roll of the town 

is not complete until it is sign- 
ed and certified, 200 

5. The last assessment roll of the 

town is the proper guide to 
trustees in making out a tax 
list as to the valuation of pro- 
ncrly, but not as to owner- 
ship, 225 

6. From the 1st of September to 

the meeting of the board of su- 
pervisors, the assessment roll 
of the town in the hands of 
the supervisor, must be con- 
sulted in assessing taxes in 
school districts 281 

7. The last assessment roll of the 

town is not a guide, in mak- 
ing out a tax list, as to a per- 
son who became an inhabitant 
of the district after the roll 

was made out,.... 292 

See Errors and Omissions, 1. 
A'otice, 5. 
Property of School Districts, 

S. 
Taxation and Taxes, 51, 58,- 

67, 70, 74, 76. 
IVarrant, 6. 

BANK. 
1. Banks are taxable lor common 

school purposes, 87 

See Public or School Moneys, 5. 



448 



iNDE^t TO DECISIONS. 



BELL. 
See .Appendages to a School- 
House, J. 

BOND OF COLLECTOR. 
See Collector, 1, 8, 9, 10, 11, 12. 

BRIDGE COMPANIES. 
See Taxation and Taxes, 14, 26. 

CANAL BOATS. 
See Vessels, 1. 

CERTIFICATES OF QUALIFI- 
CATION. 

1. ConditioHal certificates of quali- 

fication cannot be given to 
teachers, 24 

2. Certificates of qualification are 

good for a year, even though 
given by the inspectors for a 
shorter period, 76 

3. Certificates of qvialification gi- 

ven after the commencement 
of a term are good in some ca- 
ses, 120 

4. A certificate of qualification 

signed by two inspectors is 
good, if there are only two 
persons in the town authoriz- 
ed to act as such, 141 

5. Certificates of qualification to 

teach a particular school can- 
not be given, 199 

6. A certificate from the inspec- 

tors of common schools that the 
candidate gave them good sa- 
tisfaction in particular branch- 
es, is not a legal certificate of 
qualification for a teacher,. . . 2.35 

7. A teacher's certificate cannot 

be dated back, 328 

Seelnspectors of Common Schools, 
3,4, 6,6, 7, 8, 10, 11 
Teachers, 8, 10, 16, 21, 23. 
CHILDREN. 

i. None but children residing in a 
school district can of right be 
benefited by the public mo- 
ney, 11 

2. But if children not residing in 
the district are admitted into 
the school, (heir parents should 
be apprised of the conditions 
on which they are received,. 11 

3- Children are to be numbered in 
the districts in which their pa- 
rents reside; if children are 
boarded in a district to attend 
school, they must be number- 
ed where their parents reside, 33 

4. All children residing in a school 
district may of right attend the 
district school 47 



5. All children attending the dis* 

trict school must be charged 
a^t the same rate for tuition, 
without regard to the studies 
pursued by them, 47 

6. Children attending an academy 

are to be numbered in the re- 
ports of the trustees of school 
districts, if their parents re- 
side in the district in which 
the academy is situated, but 
not otherwise, 68 

7. A taxable inhahitantof a school 

district may send to school 
any child actually living with 
him, 58 

8. No child residing in a school 

district can be excluded from 
the school on account of the 
inability of the parent to pay 
his tuition, 119 

9. Parents cannot be compelled to 

send their children to school, 169 

10. The children of laborers tem- 
porarily employed on canals, 
are not to be included in school 
district reports, 208 

11. If a man removes from a dis- 
trict on the last day of Decem- 
ber, his children are to be enu- 
merated in the district into 
which he moves 216 

12. Children residing in o'her 
states when attending schools 
in separate neighborhoods 
within this state, cannot share 
the public moneys, 229 

13. Thenumberofchildrenattend- 
ing school during the year, 
must be ascertained from the 
teacher's lists, 232 

14. Ifa man is employed ina school 
district in taking care of a mill 
from fall till spring, his child- 
ren must be enumerated in 

the district, 293 

15. Children in county poor-hou- 
ses cannot be sent to a district 
school, excepting by volunta- 
ry agreement with the trus- 
tees, 303 

See Colored Persons. 
Fuel, 5. 

Indian Children. 
A'on-residents, 15. 
Poor-Houses, 1, 2. 
Public or School Moneys, 3. 
Residence, 4. 
Schools, 1 , 8. 
School Districts, 11. 
Towns, Division of, 2. 



INDEX TO DECISIONS. 



449 



CLERKS OF SCHOOL DIS- 
TRICTS. 

1 . The offices of clerk and collector 

may be hold by the same per- 
son, although the intention of 
the law would be better an- 
swered by ccmferring them on 
different individuals, 142 

2. If a clerk neglects to keep a 

book of minutes, he is not re- 
sponsible unless a book is pro- 
vided for him, 164 

See Jlnnual Meetings, 25. 
JUinor. 

JVotiee, 2, 9. 13. 
School Districts, 10. 
Trustees of School Districts, 

9. 
l^otes and Voters, 1. 

COLLECTOR. 

1. If the collector refuses to give a 

bond, his office becomes va- 
cated, and the trustees may 
make a new appointment,. .. 19 

2. Collecters arc entitled" to five 

per cent on all sums actually 
collected and paid over by 
them; but not on sums paid 
to teachers for tuition, 51 

3. Collectors are allowed the usual 

fees of distress and sale, in 
addition to five cents on each 
dollar, when they take and sell 
theproperty of delinquents,. . HI 

4. Any goods and chattels lawful- 

ly in possession of a person as- 
sessed to pay a tax, may be 
taken by the collector of a 
school district, 143 

3. A collector has thirty days from 
the delivery of a tax list and 
warrant to collect a tax, 212 

■6. If a collector takes and sells pro- 
perty to pay a tax, and the 
owner refuses to receive the 
excess, the collector must re- 
tain the amount in his hands, 217 

7. A collector is not bound to take 
any particular article of pro- 
perty at the request of the 
owner; but if he does so it 
will be an answer to the charge 
oftakingan excessive distress, 218 

5. Trustees may require a bond of 

the collector whenever a war- 
rant is delivered to him for 

collection, 340 

9. If the trustees do not require a 
bond of the collector he may 
execute a warrant without 
giving one, 340 

29 



10. Quere. — Whether the bond gi- 
ven by a collector when about 
to execute a warrant, is a se- 
curity lor the faithful execu- 
tion of the duties of his ofBce 
generally, 310 

11. If a collector gives a bond, and 
after collecting part of a tax 
resigns, quere, whether he is 
not liable, if the whole amount 
is not collected, 840 

12. The collector of a school dis- 
trict is answerable for moneys 
lost to (he district by his ne- 
glect, though he may not have 
given a bond to the trustees,. 307 

13. Collectors of school districts 
may, in certain cases, go be- 
yond the boundaries of the dis- 
tricts for which they were ap- 
pointed, to execute warrants 
for the collection of taxes and 
rate bills, 335 

See Clerks of School Districts, 1. 
Trustees of School Districts, 

2, 9, 30. 
Rate bills, 2, 8. 
Taxation and Taxes, 71, 80. 
Warrant, 3, 5, 6, 8. 
COLLECTORS OF TOWNS. 
Sec fVarrant, 5. 

COLOURED PERSONS. 
1. Coloured persons ought not to 
be employed to teach white 

children, 139 

See Votes and Voters, 13. 

COMMISSIONERS OF COMMON 
SCHOOLS. 

1. Commissioners of common 
schools are not authorized to 
change the site of a district 
school-house, although their 
csnsent to such change is ne- 
cessary in some cases, 13 

2. Commissioners cannot be com- 
pelled to pay interest on mo- 
neys withheld from school dis- 
tricts in the discharge of their 
duties, 89 

3. Commissioners of com. schools 
are, to all intents, inspectors, \Ati 

4. Commissioners of com. schools 
have no authority to designate 
a site for a school-house, or to 
give a conditional consent to 
a change of the site, 171 

5. The orders of commissioners 
altering joint districts must be 
put on record in all the towns 
of which the districts are a 
part 172 



450 



INDEX TO THE DECISIONS. 



6. Commissioners cannot give a 

second notice for the organi- 
zation of a new district where 
a meeting has been held and 
officers chosen under the first 
notice, 176 

7. A commissioner of common 

schools is answerable only for 
moneys which come into his 
hands, 184 

8. Commissioners of com. schools 

must furnish answers to ap- 
peals brought from their deci- 
sion in refusing to alter a 
school district, 187 

9. Commissioners of com. schools 

must make an annual account 
in writing to their successors 
in office, of all school moneys 
received and expended by 
them, 1S9 

10. A transfer of vouchers is not a 
sufficient account, .». 189 

11. If commissioners neglect to ac- 
count, they may be prosecut- 
ed by their successors, 189 

12. If a commissioner of common 
schools absconds with school 
moneys in his hands, it is a 
loss to the town, 234 

13. A commissioner who has sign- 

ed a receipt for school moneys, 
in conjunction with his col- 
leagues, is not answerable, 
unless the moneys actually 
come into his hands, 234 

14. Quere? Whether two com- 
missioners can make a valid 
apportionment of the school 
moneys ? 256 

15. Commissioners of com. schools 
may certify that more than 
$400 is necessary for a school- 
house, after that sum has been 
expended, 258 

16. Commissionersof com. schools 
cannot fix a site for a school- 
house, 261 

17. Commissionersof com. schools 
have no authority to receive 
and decide upon appeals from 
school districts, 264 

18. Commissioners of com. schools 
are entitled to such compen- 
sation for their services as 
may be voted by the inhabi- 
tants of the town. (But see 
note,) 275 

19. Commissioners of com. schools 
cannot charge a per centage 
on the school moneys receiv- 
ed and paid over by them, and 



deduct such per centage froia 
those moneys, 2Ta» 

20. Commissioners and inspectors 
of common schools are enti- 
tled to such compensation as 
may be voted by the electors 
of the town at their annual 
town meeting, (but see note,) 2S 

21. If theie are but two commis- 
sioners of common schools in 
office, they may act as such 
until a third is appointed,. .. . 292 

22. Commissioners of com. schools 
have no authority to declare 
void the proceedings of school 
district meetings, SO 

See Alteration in SckooWistriets, 

6. 
Annual Meetings, 4. 
Annual Reports of Trustees, 

1,6, 7. 
Errors and Omissions, 5, 6. 
Joint School Districts, 1, 2, 

3, 4. 
JVoiice, 11, 14,18, 19. 
Organization of School Dis- 
tricts, 2. 
Penalties, 1. 
Property of School Districts. 

3, 9 
Public or School Moneys, 4, 

5. 
Records, 1, 4, 6. 
School Districts, 3, 16. 
School-House, 8. 
Site for School-House, 11. 
Superintendent, 5. 
Taxation and Taxes, 72, 73„ 
Trustees of School Districts, 

37. 
Vacancies in Office, 2, 3, 4. 

5. 

CONTRACTS. 
See Trustees of School Districts, 

16, 25, 27, 32. 

CONTROVERSIES. 
See Alterations in School Dis- 
tricts, 4. 

CORPORAL PUNISHMENT. 
1. Corporal punishment has no 

sanction but usage 10 S 

CORPORATE POWERS. 
See Trustees of School Districts, 
34. 

COSTS OF SUIT. 
See Taxation and Taxes, 30. 

COURT OF CHANCERY, DECI- 
SIONS OF. 
4. Paige, 384, 36® 



INDEX TO DECISIONS. 



451 



DAMAGES. 
See Punishment. 

DEBTS. 
Sea Property of School Districts, 
9. 

DECISIONS. 
See Superintendent. 

DEEDS. 
See Taxation and Taxes, 46. 

DISSENSIONS. 
See School Districts, 9. 

DISTRESS. 
See Collector, 3, 4, 6, 7. 

DIVISIONS OF TOWNS. 
See Towns, Division of, I. 

DOMICIL. 
See Residence. 

DOUBLE DISTRICTS. 
See Joint School Districts. 
EDMESTON. 
See Tovm Funds and Lands, 3. 
ELECTION. 

1. An election need not be held in 

the day time, 146 

2. The annual election in a school 

district having been neglected 
foi two years, the Superinten- 
dent will order one to be held, 202 

S. District officers duly elected 
cannot be displaced at an ad- 
journed meeting on a reconsi- 
deration of the choice before 
made, 280 

See Annual Meetings, 1, 4. 

Commissioners of Common 

Schools, 6. 
Records, 6. 
Trustees of School Districts, 

19. 
Vacancies. 

ENUMERATION OF CHILDREN. 
See Children, 6, 10, II, 13. 

ERRORS AND OMISSIONS. 

1. An error or omission in the as- 

sessment roll of the town may 
be corrected or supplied by 
the trustees of a school dis- 
trict in making out a tax list, 2 

2. An omission on the part of the 

trustees to comply with a pro- 
vision of law before the act 
containing it has been publish- 
ed and distributed, ought not 
to prejudice the equitable 

rights of the district, 9 

S. Errors of form in the annual re- 
ports of school districts may 
be corrected, 36 



4. An error being shown in count- 

ing the votes at a district meet- 
ing for a tax for building a 
school-house, a new meeting 
will be ordered, 128 

5. When defective reports are 

made by trustees of school dis- 
tricts, commissioners should 
give time to correct them, and 
retain a portion of the public 
money in their hands to abide 
the result of such correction, 181 

6. Errors committed by the com- 

missioners of common schools 
in apportioning the school mo- 
neys, cannot be corrected by 
their successors in office, with- 
out an order from the Super- 
intendent, 297 

See Records, I, 2, 3, 5. 

School Districts, 15, 17. 
Taxation and Taxes, 53. 

EVENING SCHOOLS. 
Evening schools may be kept in 
school districts in Albany, un- 
under certain restrictions, . . . 211 

EXECUTORS. 
Executors are to be taxed where 
they reside for the personal 
property in their possession or 
under their control, 157 

See Taxation and Taxes, 47. 

EXEMPTION FROM TAXATION. 
See Ministers of the Gospel, 1, 
2,3, 5. 

JVon- Residents, 1, 2, 5, 6. 

School-House, 1. 

Taxation and Taxes, 57. 

Votes and Voters, 9. 

EXEMPTION FROM TUITION. 
See Indigent Persons. 

Trustees of School Districts, 

21. 
Tuition. 

FABIUS. 
See Town Funds and Lands, 2. 

FACTORY. 
See JVon-Residents, 10. 
FENCE. 
See Appendages to a School- 
House, 2. 

FUEL. 

1. When fuel is furnished in kind, 

it must be apportioned ac- 
cording to the time each scho- 
lar has attended school, 39 

2. Unless fuel is provided by tax, 

it must be furnished by those 
who send children to school. 



452 



INDEX TO DECISIONS. 



If any person neglects to fur- 
nish his proportion of fuel, 
the amount may be included 
in the rate bill or sued for, ... 77 

3. The only three legal modes of 

providing fuel explained,. .. . 113 

4. Fuel provided for school districts 

must not be used for meetings 
held in the school-house,. . . . 156 

5. Fuel, when furnished in kind, 

must be in proportion to the 
number of children sent to 
school, and the number of 
days' attendance, 170 

B. Inhabitants of school districts 
cannot by a vote to that effect, 
authorize their trustees to pro- 
vide fuel in any other mode 
than that prescribed by law, . 264 

See JVon-Residents, 12, 

Taxation and Taxes, 20, 60. 
Teacher, 7. 

GLOBES. 
See Taxation and Taxes, 54. 

GOODS AND CHATTELS. 
See Collector, 4. 

GOODS IN A STORE. 
See Taxation and Taxes, 12, 18. 
GOSPEL AND SCHOOL LOTS. 
See Town Funds and Lands, 4, 5. 

GRASS LAND. 
See JVon-Residents, 14. 

GUARDIANS. 
See Taxation and Taxes, 47. 
HIGHWAY LABOR. 
See Votes and Voters, 3, 7. 

HOLIDAYS. 
See Schools, 6. 

INDIAN CHILDREN. 
If there are, within the bounda- 
ries of a school district, Indi- 
an children whose education 
is provided for by special en- 
actments, they must not be 
included in the annual reports 

of the district, 343 

See Annual Meetings, 7. 

Property of School Districts, 
10. 

INDIAN LANDS. 

If there are Indian lands within 
the limits of a town, those 
lands may be included within 
the boundaries of school dis- 
tricts 343 

INDIGENT PERSONS. 

1. Indigent persons may be ex- 
empted from the payment of 
school bills, whether there is 



public money to be applied to 
the term or not, 56 

2. The tuition of indigent pupils 

cannot be paid out of the pub- 
lic money, 205 

3. The exemption of indigent per- 

sons from the payment of rate 
bills, is a matter of discretion 
with trustees, 241 

See Children, 8. 

IMPROVEMENTS. 
See Assessment Roll of Toum, 3. 

INHABITANTS OF SCHOOL 
DISTRICTS. 
Inhabitants of school districts have 
not power to alter the boun- 
daries of (heir districts, IS 

See Fuel, 6. 
Librarian. 
Libraries, 3. 

Public or School Moneys, 29. 
Rate Bill, 1. 
Site for School-House, 4, 5, 

12, 14. 
Taxation and Taxes, 6, 10, 
25, 60, 62, 63, 65, 69, 75, 
80. 
Teachers, 26. 
Trustees of School Districts, 

15, 38. 
Votes and Voters, 14. 
INSPECTORS OF COMMON 
SCHOOLS. 

1. Teachers in joint school districts 

may be examined by the in- 
spectors of either town, 3S 

2. Inspectors of common schools 

must determine the degree of 
learning and ability necessary 
for a teacher, 42 

3. Inspectors o£ common schools 

may refuse to give a teacher a 
certificate from their personal 
knowledge that his moral cha- 
racter is not good, 46 

4. Inspectors may annul a certifi- 

cate on account of the immo- 
ral character of the teacher, 
although he may perform all 
his duties in school properly,. 4© 

5. Three inspectors must sign a 

certificate of qualification for a 
teacher, in order to give it va- 
lidity, 53 

6. Quere.-Whether inspectors can 

annul a certificate except on 
the grounds on which their au- 
thority to examine teachers is 
given.' 101 

7. In districts lying partly in two or 

more towns the inspectors of 



INDEX TO DECISIONS. 



453 



either town may give a certi- 
ficate to a teacher, and the in- 
spectors of any one of the oth- 
er towns may annul it, 145 

■3. In districts lying wholly in one 
town, three inspectors may 
give a certificate, and the oth- 
er three may annulit, 145 

9. The power of inspectors over 

the course of studies in schools 
should, ordinarily, be confin- 
ed to a general supervision of 
such studies, 180 

10. Inspectors are inexcusable for 
giving incompetent teachers 
certificates of qualification,.. 209 

11. Three inspectors must sign a 
certificate of qualification,. . . 274 

12. A separate examination of a 

teacher by three inspectors 
apart from each other, is not a 
compliance with the law, ... 274 

13. Inspectors should aim to ele- 
vate the standard of education 
by a rigid examination of tea- 
chers, 325 

14. Inspectors of common schools 
may give notice that they will 
meet at certain times and pla- 
ces for the inspection of teach- 
ers; but this does not exone- 
rate them from the duty of 
meeting at intermediate times 
when their attendance is re- 
quired , 334 

See Certificates of Qualification, 
I, 2,3, 4, 5, 6. 
Commissioners of Comnum 

Schools, 32. 
Minister of the Gospel, 7. 
Teacher, 3^ 6, 7, 9, 12, 16, 
23. 

INTEREST. 
See Commissioners of Cojumon 
Schools, 3. 
Trustees of School Districts, 
7. 

IRREGULARITY. 
After a lapse of months proceed- 
ings will not be disturbed on a 
mere allegation of irregularity, 116 

JOINT SCHOOL DISTRICTS. 

1. In altering school districts lying 

partly in two or more towns, a 
majority of the commissioners 
of each town must concur,. . 23 

2. Joint districts can only be alter- 

ed by the concurrence of the 
commissioners of all the towns 
of which they constitute a 
part. 172 



3. The consent of the trustees of 

a joint district to an alteration 
does not authorize the com- 
missioners of one town to 
make it without the concur- 
rence of the commissioners of 
the other, 248 

4. The number of a joint school 

district should not be changed 
withoutthe concurrence of the 
commissioners of all the towns 
within which the district part- 
ly lies, 305 

See Commissioners of Common 
Schools, 5. 
Inspectors of Com77ion Schools, 

1, 7. 
Organization of School Dis- 
tricts, 1, 2. 
Property of School Districts, 

3. 
Taxation and Taxes, 5, 16. 
JOURNEYMEN. 
See Votes and Voters, 7. 

JUSTICES OF THE PEACE. 
See Superintendent, 2. 

LABORERS ON CANAL, &c. 
See Children, 10. 

LESSEES AND LEASES. 
See JVon- Residents, 9. 
School-House, 10. 
Taxes and Taxation, 2. 

LIBRARIAN. 

1. The inhabitants of school dis- 

tricts may appoint a librarian, 
and adopt regulations for his 
government, 2 

2. The inhabitants may direct the 

librarian not to deliver a book 
to a person who has not re- 
turned one previously, or un- 
til he has paid for any injury it 
may have sustained, 290 

LIBRARIES. 

1. School district libraries are de- 

signed both for those who 
have completed their common 
school education and those 
who have not, 62 

2. In the selection of books, sec- 

tarian and controversial sub- 
jects should be excluded 262 

3. School district libraries are in- 

tended for the use of all the 
inhabitants of the district,. .. 290 

4. The right of taking books from 

the library cannot be restrict- 
ed to scholars attending the 
district school, 290 



454 



INDEX TO DECISIONS. 



See Librarian, 2. 

Taxation and Taxes, 59. 
LOSS OF SCHOOL MONEYS. 
See Public or School Moneys, 5. 

MAPLE SUGAR LOT. 
See JVbn- Residents, 14. 

MEADOW LAND. 
See JVon-Eesidents, 3. 

MEETING-HOUSE. 
See Taxation and Taxes, 61. 
MEETINGS IN SCHOOL DIS- 
TRICTS. 
See Aliens, 1. 

Commissioners of Common 

Schools, 22. 
Election, 3. 

Errors and Omissions, 4. 
Ministers of the Gospel, 6. 
JVotices, 1, 2, 8, 10, 12, 13, 

14, 17, 18, 19, 20. 
School Districts, 1. 
Site for School-House, 10. 
Taxation and Taxes, 69. 
Trustees of School Districts, 

28. 
Vacancies in Office, 1, 2. 
Votes and Voters. 
MILITARY SERVICES. 
See Votes and Voters, 9. 

MILL. 
See Children, 14. 

J^on-Residents, 7. 
MINISTERS OF THE GOSPEL. 

1. The real estate of ministers of 

the gospel is exempt from tax- 
ation to a certain amount, only 
when occupied by them, . ... 22 

2. Land occupied by a minister of 

the gospel, as tenant, cannot 
be taxed unless its value ex- 
ceeds $1,500, 61 

S. A minister of the gospel is ex- 
empt from taxation for com- 
mon school purposes in the 
same manner as for other taxes , 73 

4. Land belonging to a minister of 

the gospel, if leased to a te- 
nant, is taxable, 90 

5. The personal property of k mi- 

nister of the gospel is exempt 
from taxation; but if the va- 
lue of his real estate exceeds 
$(1,500 he may be taxed for 
the excess, 191 

a. A minister of the gospel, being a 
freeholder, may vote at School 
district meetings, 224 

7. A minister of the gospel cannot 
be an inspector of common 
schools, 281 



MINOR. 
1. If a minor is chosen clerk of a 
school district, and he officiates 
in that capacity, his acts, so far 
as the public and third persons 
are concerned, are valid,. . . . 43 

MONTH. 

1. A school month is twenty-six 

days, exclusive of Sundays,. 57 

2. A school must be kept twenty- 

six days for a month, and se- 
venty-eight days for a quarter, 98 

NECESSARY. 
See Taxes and Taxation, 4. 

NON-RESIDENTS. 

1. The agent or servant of the non- 

resident owner must reside on 
the lot in order to subject such 
owner to taxation, 16 

2. A non-resident owner is taxa- 

ble for land occupied by an 
agent: but not if occupied by 
a tenant: and if it is unoccu- 
pied, he is taxable for so much 
only as is cleared and cultiva- 
ted, 27 

3. Non-residents are liable to be 

taxed for pastures and mea- 
dows, as land cleared and cul- 
tivated, 31 

4. A non-resident owner occupy- 

ing a lot by his agent i» taxa- 
ble in the same manner as 
though he resided in the dis- 
trict, 50 

5. Vacant unimproved lots are not 

taxable, if the owner is a non- 
resident. Of a lot of 50 acres, 
a tenant of is regarded as the 
agent of the non-resident own- 
er for the remaining forty,. . . 69 

6. Non-resident tenants cannot be 

taxed under section seventy- 
eight of the title relating to 
common schools. (But see 
note,) 73 

7. A saw-mill having an agent or 

servant in charge of it is taxa- 
ble to the non-resident owner, 82 

8. Land occupied by an agent or 

servant of the non-resident 
owner is taxable to the latter, 91 

9. A person leasing land at halves 

of a non-resident owner is tax- 
able for it, 94 

10. A factory unoccupied is taxa- 
ble to the non-resident owner, 
though a house on the same 

lot is occupied by a tenant, . . 100 



INDEX TO DECISIONS. 



455 



n. To subject the unimproved 
part of a lot belonging to a 
non-resident to taxation, the 
improved part must be occu- 
pied by an agent or servant, . 159 

12. Non-residents are taxable for 
fuel if they own improved 
lands in the district, 207 

13. Non-residents are taxable for 
lands used as pastures, 270 

14. Grass land and ploughed land 
are taxable to the non-resident 
owner: but a wood lot used 
for manufacturing maple sugar 

is not taxable to such owner, 308 
16. If a non-resident owner of tax- 
able property sends his child- 
ren into the district in which 
such property lies, for the pur- 
pose of attending school, they 
have a strong equitable claim 
to be received, unless by their 
admission the school would 
become too crowded, 317 

See Children, 2. 
Rate Bills, 3. 
JSTote, page 44. 

NOTICE. 

1. A new district being formed, a 

notice to each inhabitant of 
the time and place for the first 
meeting is sufficient, 18 

2. If the district clerk refuses to 

give notice of a meeting of the 
inhabitants, the notice may be 
given by the trustees, 19 

3. The provision requiring three 

months' notice to trustees of 
an alteration in their school 
district is intended for their 
protection, and to that end is 
to be benignly construed, ... 29 

4. Unless some person claims a re- 

duction of his valuation, trus- 
tees are not required to give 
notice of the assessment of a 
tax, 40 

5. Trustees of school districts must 

give notice of the assessment 
of a tax in all cases where a 
reduction is claimed, or where 
the valuations of property can- 
not be ascertained from the 
lastassessment roll of the town, 42 

6. In altering school districts, no- 

tice ought to be given to the 
parties in interest, although 
such notice is not required by 
law, C2 

7. If the school district offices are 

all vacated by resignation, no* 



fice of such resignation may 

be given to the town clerk,. . 112 

8. Notices for special meetings 

must be in writing, 186 

9. A written notice given by the 

clerk of a district in pursuance 
of a verbal direction from the 
trustees is good, 186 

10. The proceedings of a meeting 
held without any attempt to 
give a legal notice are not va- 
lid, 186 

11. Notice must be given to the 
real parties in interest, where 
the commissioners of common 
schools take no pains to sus- 
tain their proceedings, 187 

12. Notices for special meetings 
must be personally served, . . 204 

13 If the clerk gives a verbal no- 
tice for a special meeting to 
part of the inhabitants and a 
written notice to the residue, 
the proceedings are not void, 
but may be set aside on show- 
ing cause, 223 

14. If a written notice of the time, 
place, and object of a meeting 
called to organize a school dis- 
trict, is left at the house of one 
of the inhabitants in his ab- 
sence, all the others being no- 
tified according to law by per- 
sonal service of the notice, it 
is sufficient, though the notice 
so left does not show that the 
meeting is called by the com- 
missioners of common schools, 259 

15. Trustees are not entitled to no- 
tice of an appraisement until 
after it is made, 259 

16. In forming a new district, no- 
tice of the alteration may be 
served on a trustee set off to 

the new district, 259 

17. If at an annual meeting a vote 
is passed in relation to the 
erection of a school-house or 
the choice of a site, and a spe- 
cial meeting is subsequently 
called under a notice to recon- 
sider the proceedings of the 
annual meeting, it is a suffi- 
cient designation of the object 
of the meeting to justify the 
inhabitants in rescinding or 
modifying such vote, 353 

18. When a new district is formed, 
if the commissioners of com- 
mon schools neglect to issue 
a notice for the first district 
meeting, within twenty days, 



456 



INDEX TO BECISIOK-J 



they may issue it at a subse- 
quent time, 35S 

19. If a notice is issued for the first 
district meeting in a new dis- 
trict, formed without the con- 
sent of the trustees of the dis- 
trict or districts from which it 
was taken, and the time fixed 
for such meeting is wifhirf 
three months after service of 
notice on such trustees of the 
alteration made in their dis- 
tricts, the notice issued for 
such first district meeting is 
void, and the commissioners 
may issue another at a subse- 
quent time, , 358 

20. If the notice for the first dis- 
trict meeting in a new district 
is not void, but merely defec- 
tive in form, application may 
be made to the Superinten- 
dent to amend it, 358 

See Animal Meetings, 2, 5. 

Alterations in School Dis- 
tricts, 7, 10. 

Appeals, 4. 

Commissioners of Common 
Schools, 6. 

School Districts, 6. 

Taxation and Taxes, 59, 70, 
7&. 

Trustees, 8. 

OATH. 
See Assessment of Taxes, 1, 

OATH OF OFFICE. 

See Trustees, 5. 
OFFICERS OF SCHOOL DIS- 
TRICTS. 

The acts of an officer de facto 
are valid so far as the public 
and third persons are concern- 
ed, ...., 1^ 

See Aliens, 2. 

Annual Meetings, 4, 9. 
Commissioners of Common 

Schools, 6, 
Elections. 
Minor. 
Penalties. 
Records, 6. 
Resignation- 
Votes and Voters, 1, II. 
OMISSIONS. 

See Errors and Omissions, 1, 2. 
Records, 2, 5. 
Refusal to serve, I. 
School Districts, 17. 

ORGANIZATION OF DISTRICTS 

1. The formation of a new town 



does not affect the organizav 
tion of school districts. A dis- 
trict mtersected by the line of 
division between the new town 
and the town from which it is 
taken, becomes a joint district, B 

2. On the division of a town and 
the formation of a new one, 
the commissioners of common 
schools of the new town can- 
not disturb the organization of 
a school district lying partly in 
both, without the concurrence 
of the commissioners of the 
other, r^ 

Se© Commissioners of Common 
Schools, 6. 
School Districts, 2, 3, 12. 
Records, 6. 

PARENTS. 

See Children, 2. 3, 8, 9. 
Res-idence, 4. 

PASTURES. 

See JVbn-Residents, 3, 13. 

PERSONAL PROPERTY. 

See Executors. 

Ministers of the Gospel, 5. 
Taxation and Taxes,. 12, I'Sj, 
47, 58, 76. 

PENALTIES. 

1. Suits for penalties against dis- 

trict officers for neglecting to 
perform the duties of their of- 
fice, must be browght by com- 
missioners of common schools, 164 

2. The penalty provided in case 

district officers neglect (o per- 
form the duties of their office, 
is intended for cases of total 

neglect, W^ 

See JVon-Residents, 14. 

PLOUGHED LAND. 
See Trustees of School Districts, 12^ 
POOR-HOUSES. 

1. Childien in poor-houses are not 

to be included in the annual 
reports of school districts, ... 25i 

2. Children of the overseers of 
poor-houses are t& be enume- 
rated by trustees of school dis- 
tricts,.. SS 

See Children, 14. 

PREMIUMS FOR SCHOLARS. 
See Rate Bills, 4. 

PRIVATE PROPERTY. 
See Sitefor School-House, 1. 

PROCEEDINGS. 
See Annual Meetings, 11. 

Commissioners of Common 
Schools, 22. 



INDEX TO DECISIONS. 



457 



See Irregtilarity. 

JVoiice, 10, 11, 13, 17. 

Void Proceedings. 

Votes and Voters, 8, 10, 12. 

PROMISSORY NOTES. 
See Trustees of School Districts, 35. 
Taxation and Taxes, 36. 

PROPERTY OF SCHOOL DIS- 
TRICTS. 
See School- House, 3, 4, 5, 6, 17. 

1. If a part of the value of the pro- 

perty of an old district is award- 
ed to a new district on account 
of a person not liable to be tax- 
ed in the latter for a school- 
house, the amount is to be al- 
lowed to the credit of all the 
inhabitants, 64 

2. No appraisement of a school- 

house and other property is 
necessary when persons are 
set off from one existing dis- 
trict to another, 66 

S. In apportioning the value of a 
school-house belonging to a 
district lying partly in two 
towns, the commissioners 
should follow the assessment 
rolls of the towns, 78 

4. An appraisement of a school- 

house, postponed for good 
cause, will be confirmed when 
made subsequently to the for- 
mation of the new district,. . • 81 

5. Mode of pi'oceeding in apprais- 

ing school-houses explained,. 88 

6. No person who is set to a new 

district can, without his con- 
sent, be deprived of his right 
to receive a portion of the va- 
lue of the school-house of the 
district, from which he is ta- 
ken, 92 

7. In appraising the school-house 

and property of a district lying 
partly in two towns, the com- 
missioners of both must unite, 144 

8. The apportionment of the value 

of the school-house and other 
property of a district, need not 
be filed with the town clerk 
in order to give validity to the 
proceedings, 144 

9. In appraising a school-house, 

when a new district is formed, 
the commissioners must de- 
duct debts due from the dis- 
trict retaining the school- 
house, 167 

10. When persons are annexed to 
a new district without their 



consent, and are not liable to 
be taxed in it for a school- 
house, the portion of the value 
of the school-house in the dis- 
trict from which they are ta- 
ken allowed to the new dis- 
trict, on account of the taxa- 
ble property of such persons, 
goes to the benefit of all the 
inhabitants, 196 

11. Every person set off to a new 
district is entitled to his share 
of the value of the school- 
house from which he is taken, 
whether he has contributed to 

its erection or not, 246 

12. If through an erroneous im- 
pression as to the title of the 
site of the school-house, the 
commissioners appraise it at 
too low a sum, the proceeding 
is not void, but may be vacat- 
ed on an appeal, 259 

13. If all the persons set off to a 
new district relinquish their 
interest in the school-house in 
the old district, it need not be 
appraised, 259 

14. When a school district is dis- 
solved, the value of the school- 
house, and other property, 
ought to be distributed among 
the inhabitants according to 
their taxable property, 270 

See Site for School-House, 9. 
Taxation and Taxes, 38. 
Trustees of School Districts, 
29. 

PROPERTY, RIGHT OF, IN THE 
SOIL. 

See Taxation and Taxes, 38. 
PUNISHMENT. 

If a teacher inflicts unnecessari- 
ly severe punishment on a pu- 
pil, he is answerable in dama- 
ges. His government should 
be mild and parental; but he 
is responsible for the mainte- 
nance of discipline in his 
school, 101 

See Corporal Punishment, 1. 
Teachers, 13. 

PUBLIC OR SCHOOL MONEYS. 

1. If the commissioners of common 

schools know a district report 
to be erroneous, the public 
money may be withheld, and 
the case submitted to the Su- 
perintendent, 20 

2. If, for causes not to be control- 

led, a school has not been kept 



458 



INDEX TO DECISIONS. 



three months during (he pre- 
ceding year by a qualified tea- 
cher, the district will be al- 
lowed a share of the public 
money, 34 

3. All children residing in a dis- 

trict are to have the benefit of 
the public money, if the/ at- 
tend school, without reference 
to their ages, 34 

4. If school moneys apportioned to 

school districts cannot be re- 
covered of the commissioner 
who received them, the loss 
falls on the districts, 41 

5. If a bank fails, and the commis- 

sioners of common schools 
have in their hands bills of the 
bank, received as school mo- 
neys, the loss falls on the 
school districts, 51 

6. The public money can only be 

applied to the benefit of such 
schools as are established by 
trustees of school districts,. . 55 

7. If a district directs the public 

moneys to be divided, the 
vote should be passed during 
the year in which the moneys 
are to be applied, 62 

8. Public money cannot be paid to 

a district unless a school has 
been kept therein three 
months by a qualified teacher, 
and unless all moneys receiv- 
ed the previous year have been 
paid to him, 64 

9. The public money must be paid 

to teachers for services ren- 
dered between the January 
preceding and the January 
following the time of receiv- 
ing it, 70 

10. If a person agrees to pay lor a 
certain number of scholars he 
is to have the benefit of the 
public money in reduction of 
their school bills, 83 

11. If a school district loses its por- 
tion of the public money in 
consequence of mislaying its 
annual report, the loss will, 
on application to the Superin- 
tendent, be allowed out of the 
moneys distributed the next 
year, 99 

12. If, from unavoidable necessity, 
a balance of the public moneys 
remains in the hands of the 
trustees, the district may re- 
ceive its share of the public 
moneys the next year, 106 



13. A school district formed in Oc- 
tober, may receive a portion 
of the public money, when 
the districts, from which it 
was taken , have complied with 

the law, lie 

14. If a school has not been kept 
in a district three months dur- 
ing the preceding year, by a 
qualified teacher, in conse- 
quence of any over-ruling ne- 
cessity, the district will be al- 
lowed a portion of the public 
money Ill 

15. When a new district is foriried, 
the public moneys on hand in 
the old district should be equi- 
tably divided, 125 

16. Public moneys are to be equi- 
tably divided when a new dis- 
trict is formed, 137 

17. Public money should be fairly 
divided between the summer 
and winter terms, 162 

18. A vote to divide public money 
into portions may be taken at 
any time before the money is 
expended, 169 

19. A district cannot make a se- 
cond division of the public 
money after a rate bill has 
been made out and delivered 

to the collector, 169 

20. If trustees pay public money 

to a teacher not qualified, they 
may be prosecuted for the 
amount as for a balance in 
their hands, 2)3 

21. If one district is united to ano- 
ther, the public money belong- 
ing to either must be applied 

for the common benefit of all, 224 

22. When a new district is formed 
and goes into operation before 
the apportionment of school 
moneys is made, it must re- 
ceive its share of those mo- 
neys, 237 

23. If a district entitled to receive 
the public money is dissolved, 
and part of it annexed to a 
district not so entitled, tlie 
latter can receive no public 
money in consequence of such 
accession , 2^ 

24. An apportionment of the school 
moneys after the time pre- 
scribed by law, is good, 256 

25. If a district is divided immedi- 
ately after the school moneys 
are distributed, and the per- 
sons set off continue to send 



INDEX TO DECISIONS. 



459 



to school in the district, those 
moneys should be applied for 
their benefit in common with 
others 276 

26. Treasurers of counties cannot 
deduct from the school mo- 
neys the commission of one 
per cent, to which they are 
entitled, 2 8 

27. If a teacher is taken sick, and 
another cannot be procured in 
time to have the school kept 
three months, the Superin- 
tendent will, on showing the 
facts, allow tiie district a share 

of the public money, 29-1 

28. If public money is paid to a 
teacher not qualified, and the 
trustees or inhabitants replace 
out of their private funds, 
the amount so paid, the dis- 
trict will be allowed to parti- 
cipate in the apportionment of 
the public moneys, 298 

29. If trustees engage a teacher 
for a specified term, and the 
inhabitants of a school disirict, 
without good cause, withdraw 
their children from the district 
school, and send them to a 
private teacher, the Superin- 
tendent will allow the greater 
part of the public money to be 
applied to the term for which 
the teacher was engaged by 
the trustees, 301 

10, The public money cannot be 
paud to teachers for services 
rendered during the year pre- 
ceding the receipt of such mo- 
neys 313 

11. If a school district formed nine 
months before the first of Ja- 
nuary, is unable to procure a 
suitable room for keeping 
school, and cannot succeed 
in building a school-house in 
time to have a school kept 
three months by a qualified 
teacher, the Superintendent 
will, on application to him, al- 
low such district a portion of 
the public moneys, if the time 
during which the inhabitants 
have contributed to the sup- 
port of a school by a qualified 
teacher in the new district, 
and in the district from which 
it was taken, is equal to three 
months, 35 

See Annual Reports of Trustees, 
1,3,5,6,7. 



See Children, 1, 12. 

Commissioners of Common 

Schools, 1, 2, 7, 9, 12, 13, 

14, 19. 
Errors and Omissions, 5, 6. 
Indigent Persons, 1, 2. 
Schools, 5, 7. 
School Districts, 17. 
Teachers, 12, 17, 19,22, 24. 
Towns, Division of, 1,2, 3. 
Trustees of School Districts, 

7, 11, 13, 20. 

PURCHASES BY INDIVIDUALS. 
See School Districts, 2, 7. 

Taxation and Taxes, 27, 58. 
PURCHASER. 
See Taxation and Taxes, 1. 

QUARTER OF A YEAR. 
A quarter of a year is ninety-one 

days, 67 

See Mont , ■^. 

RAIL-ROAD COMPANIES. 
See Taxation and Taxes, 78. 
RATE OR SCHOOL BILLS. 

1. In making out rate bills to pro- 

vide for the payment of teach- 
ers' wages, inhabitants of 
school districts can only be 
charged for so much time as 
their children have actually 
attended school 15 

2. The jurisdiction of the trustees 

and collector of a school dis- 
trict, in collecting rate bills 
by warrant, is limited to the 
district, 78 

3. Rate bills must be collected of 

residents by warrant, and of 
non-residents by prosecution, 78 

4. Trustees have no right to in- 

clude in a rate bill a sum of 
money to procure premiums 
for scholars; nor can a tax be 
laid for the purpose, 124 

5. Rate bills for teachers' wages 

should be promptly made out 
and collected, 258 

6. Trustees must make out rate 

bills from the lists kept by the 

teacher, 268 

See Collector, 13. 
Children, 5. 
Fuel, 2. 3, 4. 
Indigent Persons, 1, 3. 
Public or School Moneys, 19. 
Schools, 8. 
Suits. 1. 

Taxation and Taxes, 15, 34. 
Tax Lists, 2. 

Teachers, 9, 15, 19, 20, 22, 
25, 27. 



460 



INDEX TO DECISIONS. 



See Trustees of School Districts, 
2, 11, 21, 23,30. 
Warrant, 5. 

REAL ESTATE. 
See Assessment Roll of Town, 3. 
Ministers of the Gospel, 1, 5. 
Taxation and Taxes, 12, 13, 
18, 26, 27, 78. 

RECORD BOOK. 
See Taxation and Taxes, 45. 
RECORDS. 

1. The formation of a new district 

not having been recorded at 
the time it was formed, on ap- 
plication to the Superinten- 
dent of Common Schools, the 
commissioners will be author- 
ized to enter their proceedings 
of record, 1 

2. If the record of an alteration in 

a school district does not show 
that the consent of the trus- 
tees was obtained, the fact 
may be proved by other testi- 
mony, and the omission does 
not invalidate the proceedings, 79 

5. Where the proper records have 

not been made, the legal ex- 
istence of school districts will 
be presumed, if they have 
been organized for a length of 

time , 79 

4. The loss of the record of a 
school district does not disor- 
ganize it, but the commission- 
ers should describe the boun- 
daries anew, 103 

6. An omission to record an altera- 

tion in a school district does 
not render the proceeding 
void, 146 

6. If a school district has been re- 

cognized as legal for a length 
of time, regularity in its orga- 
nization will be presumed in 
the absence of the proper re- 
cord, and the commissioners 
of common schools cannot 
form the district anew and or- 
der an election of officers un- 
der such circumstances, 197 

7. A school district reported to the 

Superintendent from the year 
1822 to 1835 was held to have 
a legal existence, though the 
record of its organization was 
signed by only one of the com- 
missioners of common schools, 248 
See Commissioners of Common, 
Schools, 5. 
School Districts, 10, 15, 16. 



REFUSAL TO SERVE. 

1. A refusal to serve as an officer 

of a school district vacates the 
office, 814 

2. A refusal to serve must be 

shown by an express declara- 
tion, and cannot be inferred 
from a neglect to perform the 

duties of the office, 314 

See Trustees of School Districts, 19. 

RELIGIOUS OPINIONS. 
See Teacher, 6. 

REMOVALS. 
See Children, 11. ' 

RENEWAL OF WARRANT. 
See Warrant, 1, 2, 3, 4. 

RENT OF SCHOOL ROOM. 
See School-House, 10. 
Schools, 1. 

Taxation and Taxes, 23. 
Trustees of School Districts, 6, 

REPAIRS. 
See School-House, 10. 
Trustees, 10. 

Taxation and Taxes, 8, 20, 79. 
RESIDENCE. 

1. A man of lawful age hired out 

for a year or six months, and 
havmg no family, is a resident 
of the district in which he is 
hired, 88 

2. A person hiring out his services 

for a limited period to an in- 
habitant of a school district, 
must, if of age, be deemed a 
resident of the district, unless 
he has a family and domicil 
elsewhere, 292 

3. If a person removes from one 

school district into another in 
the same village, and takes 
lodgings for his family until 
he can find a permanent place 
of residence to suit him, he is 
a taxable inhabitant of the dis- 
trict into which he has so re- 
moved, 305 

4. The residence of the parent is 

the residence of the child, . . 317 
See Children, 4. 
Rate Bill, 3. 
Votes and Voters, 2, 4. 

RESIGNATION. 
A verbal resignation by district 

officers is good, 112 

See JVotice, 7. 

SATURDAY. 
See Schools, 4, 5. 
Teachers, 13. 



INDEX TO DECISIONS. 



461 



SAW-MILL. 
See JVon-Residents, 7. 

SCHOOLS. 

1. If the children residing in a 

school district are too numer- 
ous to be instructed in one 
school, the trustees may hire 
one or more additional teach- 
ers and the necessary rooms 
for the accommodation of the 
additional schools, when au- 
thorized by a vote of the in- 
habitants; but the compensa- 
tion of the teachers must be 
provided for in the same man- 
ner as thoui;h only one in- 
structor had been employed,. 4 

2. Schools should not be kept more 

than six hours per day, 88 

3. Select schools cannot be kept in 

district school-houses 119 

4. School may be kept on Sunday 

for the benefit of persons who 
observe Saturday as holy time, 
and the teacher must be paid 
for that day by those who send 
to school, 138 

5. A teacher may receive the pub- 

lic money if he dismisses his 
school on Saturday and keeps 
it open on Sunday, 138 

6. On certHin holidays schools may 

be dismissed , 139 

7. If a school has not, in conse- 

quence of any overruling ne- 
cessity, been kept 3 months 
by a qualified teacher, the dis- 
trict will be allowed a share of 
the public money on applica- 
tion to the Superintendent,.. 153 

8. If a child attends school half a 

day, it is to be reckoned as 
half a day, 162 

9. The scholars may be divided 

and put in different rooms, . . 208 

10. Schools must be kept in the 
district school house, except- 
ing in extraordinary casts,. . . 271 

See Children, 2, 3, 4, 8. 9. 
Evening Schools. 
Libraries, 4. 
J\'on- Residents, 15. 
Public or School Moneys, 2, 

6,8,14,31. 
School Districts, 4, 8, 17. 
School-House, 9. 
Teachers, 5, 13. 
Trustees of School Districts, 
15. 

SCHOOL BILLS. 
See Rate Bills. 

Taxation and Taxes, 15. 



SCHOOL DISTRICTS. 

1. The vote of a district meeting 

declaring the district dissolved 
has no binding force, 63 

2. Purchases subsequent to the or- 

ganization of a school district 
are not to affect its bounda- 
ries, 69 

3. Commissioners of common 

schools cannot interfere with 
the organization of a school 
district, while an appeal be- 
fore the Superintendent, in 
respect to such organization, 
is pending, 69 

4. New districts should not be 

formed without sufficient 
strength to support respecta- 
ble schools, 107 

5. School districts must be com- 

posed of contiguous farms, . . 109 

6. Where a new district is formed, 

and the trustees of the district 
from which it is taken do not 
consent to the alteration, no 
act can be done in pursuance 
of it until three months after 
notice, 122 

7. Purchases of land subsequent to 

the formation of a new dis- 
trict do not affect its bounda- 
ries, 128 

8. School districts should not be so 

reduced in strength as to be 
unable to maintain respectable 
schools, 136 

9. Dissensions in school districts 

cannot be allowed to be made 
a ground for altering or break- 
ing them up, 136 

10. If a district has had no clerk 
or record for two years, it is 
not for that reason dissolved,. 146 

11. School districts should not be 
formed with less than forty 
children between five and six- 
teen years of age, 220 

12. If part of the inhabitants of a 
district separate from the rest, 
and build a private school- 
house, it will not be deemed 
a reason for organizing them 
into a separate district,. . .' . . 233 

13. The bad management of the 
afiairs of a district is not a suf- 
ficient reason for setting of! 

an inhabitant, 256 

14. A district ought not to be al- 
tered for the temporary conve- 
nience of an individual, 256 

15. If a new district, formed with 
the consent of the trustees of 



463 



INDEX TO DECISIONS. 



the districts from which it was 
taken, has gone on in good 
faith to build a school-house, 
and a school has been kept ten 
months, irregularities in its for- 
mation will not be noticed, af- 
ter the lapse of two years, if 
the record of the proceedings 
of the commissioners in form- 
ing it is regular, and no ap- 
peal has been made, 295 

16. Commissioners of common 
schools will not be permitted 
to deny the legal existence of 
a district when their own re- 
cords show it to have been re- 
gularly formed, 295 

17. If a new district is formed so 
soon before the first of Janua- 
ry as not to have had time to 
have a school kept 3 months 
by a qualified teacher, and if 
part of said district is taken 
from a district in which a 
school has been kept three 
months by a qualified teacher, 
and the residue from territory 
not belonging to any district, 
such new district should be al- 
lowed a share of the public 
money, 349 

See Alterations in School Dis- 
tricts- 
Indian Lands. 

Inhabitants of School Sis- 
tftcts 1 • 

J\rotice,'l, 3, 6, 14, 16, 18, 
19, 20. 

Property of School Districts. 

Public or School Moneys, 5, 
7,8, 11, 12,13, 14, lb, 16, 
21,22, 23, 25,31. 

Records, 1, 2, 3,4, 6, 7. 

School-House, 5, 6, 17. 

Superintendent, 3, 5, 7. 

Taxation and Taxes, 27, 42, 
65. 

SCHOOL-HOUSE. 

1. A tenement leased for a school- 

house cannot be taxed , 8 

2. Persons annexed to a school dis- 

trict, after the school-house 
has been built and paid for, 
cannot be compelled to con- 
tribute to the expense of its 

construction , 32 

8. A person setoff from one school 
district to another is not enti- 
tled to any part of the value of 
the school-house or property 
of the distr.ct from which he 
is detached, 35 



4. The value of the school-honse 

and other property is only to 
be apportioned when a new 
district is formed, 3§ 

5. When a new district is formed, 

the school-house and other pro- 
perty of the district, from which 
it is taken, must be appraised 
and apportioned at the same 
time, 37 

6. When a new district is formed, 

and a sum of money is receiv- 
ed as its proportion of the va- 
lue of the school-house of the 
district from which it is taken, 
this sum must be applied to 
the erection of a school-house 
in the new district, and in re- 
duction of the taxes of the 
persons on account of whose 
property it was received,. ... 39 

7. A school-house built by sub- 

scription may, if under the 
control of the trustees, be kept 
in repair by a tax on the pro- 
perty of the district, 47 

8. The certificate of the commis- 

sioners that more than four 
hundred dollars is necessary 
for a school-house, should be 
given before the additional 
sum is voted, , 4& 

9. Trustees of school districts can- 

not allow any part of the dis- 
trict school-house to be occu- 
pied excepting for the puipo- 
ses of the district school, .... 51 

10. A school-house may be kept in 
repair by tax, if the district 
has a lease of the land on which 

it stands, 61 

11. School-houses may be used for 
Sunday schools 91 

12. School houses cannot be used 
for any other than common 
school purposes, excepting by 
general consent, 99 

13. A vote of a majority of the in- 
habitants does not render it 
proper to use school-houses for 
any other than their legitimate 
purposes, 99 

14. A school-house cannot be sold 
under execution on a judg- 
ment against the trustees of 
the district, 127 

15. There can be no partnership in 
the erection of a district school- 
house, 201 

16. No more money can be ex- 
pended on a school-house than 
is necessary for common school 
purposes, 



INDEX TO DECISIONa. 



463 



17. In apportioning the value of a 
school-house when a new dis- 
trict is formed, the omission of 
one of the persons set off can- 
not be made a ground of ob- 
jection to the proceeding by an 
inhabitant of the old district,. 259 
See Commissioner )< of Common 

Schools, 15. 
Fuel, 4. 
Aortce, 17. 
Property of School Districts, 

1, 2, 3, 4, 5,9, 10, 11, 12, 

13. 14. 
Public or School Moneys, 31. 
Schools, 1, 3, 10. 
School Districts, 12. 
Site for School-House. 
Taxation and Taxes, 7, 8, 9, 

31,32, 33, 35, 38, 40, 41, 

42, 57, 61, 65, 69, 72, 73, 

79. 
Trustees of School Districts, 

10, 14, 15. 

SEAL. 
See Warrant, 4. 

SEPARATE NEIGHBORHOODS. 
Separate neighborhoods can only 
be set off to form districts 
with the inhabitants of adjoin- 
ing states, 294 

See Children, 12. 

SERVANT. 
See J^on-Residents, 1, 2, 4, 5, 7, 
8, 11. 

SITE FOR SCHOOL-HOUSE. 

1. Private properly cannot be ta- 

ken for a site for a school- 
house without the consent of 
the owner, 26 

2. If a district is unaltered, the site 

of the school-house cannot be 
changed by a vote of 14 against 
8, as this is not the legal ma- 
jority required, 105 

S. If the title to the site of the 
school-house fails, a new one 
may be fixed by a majority of 
votes, 107 

4. Sites for school-houses should 

not be fixed without a fair ex- 
pression of the opinions and 
wishes of the inhabitants, . , . 132 

5. If the title to the site of a school- 

house fails, the inhabitants 
may select another [)recise.y 
as though the district had ne- 
ver possessed one, 132 

6. A school-house being abandon- 

ed, and the right of occupan- 



cy failing with it, a new site 
may be chosen by a majority 
of votes, 142 

7. When the site of a school-house 

has been fixed, it may be chan- 
ged by a majority of votes at 
any time before the school- 
house is built or purchased,. . 182 

8. If a site is chosen for a school- 

house and the owner refuses 
to give a conveyance, a new 
one may be chosen by a ma- 
jority of votes, 195 

9. The site of a school-house, if ac- 

tually owned by the district, 
is a part of its property, sub- 
ject to appraisement when a 
new district is formed, 200 

10. If at a meeting called to fix the 
site of a school -house a reason- 
able time has not been given 
lor all the inhabitants to assem- 
ble, a new meeting will be or- 
dered 219 

11. If the inhabitan's agree that the 
commissioners may select a 
site, the selection ought to be 
acquiesced in, 261 

12. When the site of a district 
school-house is chmged pur- 
suant to the act of 17th Feb- 
ruary, 1S31, the inhabitants 
have power to direct the sale 

of the former lot and site, . . . 3H 

13. Whenever the site of a district 
school-house is legally chang- 
ed, otherwise than by the act 
of 17th February, 1831, the 
trustees have power to sell 
and convey the former lot and 
site without a vote of the in- 
habitants of the district,. .. . 311 

14. If the inhabitants of a school 
district authorize the trustees 
to select a site for a school- 
house, it is not a legal site un- 
til subsequently fixed by a vote 

of the inhabitants, 353 

See Alterations in School Dis- 
tricts, 5, 9. 
Commissioners of Common 

Schools, 1, 4, 16. 
JVotice, 17. 
Property of School Districts, 

12. 
Taxation and Taxes, 8, 31, 

32, 35, 38, 40, 46, 74. 
Votes and Voters, 12. 
SINGING SCHOOLS. 
See Taxation and Taxes, 60. 

SLOOP. 
See Vessels, 2. 



464 



INDEX TO DECISIONS. 



SPECIAL MEETINGS. 
SeeJVbtice, 8, 12, 13. 

Vacancies in Office, 1 . 

STORE. 
See Taxation and Taxes, 12, 18. 

STUDIES. 
See Inspectors of Common Schools, 9. 
Teachers, 20. 

SUITS. 

1. A resident cannot be prosecut- 

ed by trustees for a tax or for 
tuition bills, 254 

2. If a person removes from a dis- 

trict after a tax list is made 
out, he may be prosecuted for 
his part of the tax if he does 

not pay voluntarily 291 

See Commissioners of Common 

Schools, 11. 
Penalties, 1. 
Bate Bills, 3. 
Taxation and Taxes, 30. 
Trustees of School Districts, 

12, 31. 

SUMMER. 
See Public or School Moneys, 17. 

SUNDAY. 
See Schools, 4, 5. 

SUNDAY SCHOOLS. 
See School-House, 11. 

SUPERINTENDENT. 

1. The daily opinions of the Super- 

intendent, given in reply to 
abstract questions and ex parte 
representations, are not to be 
classed among those decisions 
which the law declares to be 
i&nal, 4 

2. Superintendent cannot interfere 

with proceedings before justi- 
ces of the peace; but his opi- 
nion will be given with a view 
to the amicable adjustment of 
controversies, 15 

3. The Superintendent will not in- 

terfere with the general ar- 
rangement of school districts 
in a town, excepting in special 
cases where cause is shown,. 35 

4. The decisions of the Superin- 

tendent are final, 44 

5. If a school district is established 

by a decision of the Superin- 
tendent, it cannot be dissolv- 
ed by the commissioners of 
common schools, 44 

6. The Superintendent of common 

schools will not take cogni- 
zance of controversies in school 



districts, in respect to which 
the parties have commenced 
litigation in the courts, 59 

7. The Superintendent has only 

an appellate jurisdiction in the 
formation and alteration of 
school districts, 184 

8. The Superintendent will not 

give opinions to be used in 

court, 285 

See Annual Meeting, 3. 

Annual Reports of Trustees, 5. 

Appeals, 1, 3, 4. 

Elections, 2. 

Errors and Omissions, 6. 

Public or School Moneys, 11, 
27, 29, 31. 

Schools, 7. 

School Districts, 3. 

Taxation and Taxes, 25, 66. 

Teachers, 23. 

Trustees of School Districts, 
10. 

Void Prdceedings, 1. 

Votes and Voters, 8. 
SUPERVISORS. 
See Assessmant Roll of Town, 6. 

SUPREME COURT, DECISIONS 
OF. 

1. The People vs. Collins, 7 John- 

son 549, 16 

2. Ring vs. Grout, 7 Wendell 

341 18, 44, 117 

3. Dubois vs. Thorne, 8 Wendell 

518, 27, 74 

4. Robinson vs. Dodge, 18 John- 

son 351 28 

5. Sanders vs. Springsteen, 4Wen- 

dell 429 99 

6. Rowland vs. Luce, 16 Johnson 

135, 143 

7. Keeler vs Chichester, 13 Wen- 

dell 629, 144 

8. SpafTord vs. Hood, 6 Cowen 

478 165 

9. Baker vs. Freeman, 9 Wendell 

36, 168 

10. Easton vs. Calendar, 11 Wen- 
dell 90, 227 

11. Wilcox vs. Smith, 5 Wendell 
231, 231 

12. Silver vs. Cummings, 7 Wen- 
dell 181,.... 191, 282, 314, 333 

13. McCoy vs. Curtice, 9 Wen- 
dell 17 258, 328 

14. Reynolds vs. Moore, 9 Wen- 
dell 35, 260 

15. Alexander vs. Hoyt, 7 Wen- 
dell 89, 281 

16. Suydam and Wyckoffvs. Keys, 

13 Johnson 444, 282 



INDEX TO DECISIONS. 



50. 



17. Sacavool vs. Boughton, 5 Wen- 

dell 170, 

18. Brewster vs. Colwrell, 13 Wen- 

dell 28, 

19. Hubbard vs. Randall, 1 Cowen 

262, 

Ward vs. Aylesworth, 9 Wen- 
dell 281, 

TAXATION AND TAXES. 

1. Land purchased after a tax is 

voted, but before the tax list 
is made out, must be assessed 
to the purchaser if he resides 
in the district, 

2. Persons leasing specific portions 

of a lot are to be taxed for so 
much as they lease, 

3. Rule of taxation applied to a 

particular case, 

4. A tax may be levied in a school 

district to build a wood-house 
and necessary, 

5. If a farm lies partly in tvv'o school 

districts, it is to be taxed in 
the district in which the occu- 
pant resides, 

a. Taxes can only be voted by the 
inhabitants of school districts 
for the objects enumerated by 
law, 

7. If the trustees of a school dis- 

trict expend money for re- 
pairing the school-house with- 
out being authorized by the 
inhabitants, a tax to cover the 
expenditure may be collected, 
if voted at a subsequent time, 

8. A tax voted to repair a school- 

house should not be collected, 
if the district has no title to 
the site, and the owner has for- 
bidden the repairs to be made, 

9. A person set ofi'without his con- 

sent from a school district, 
cannot be taxed for a school 
house, it within four years he 
has paid a tax for that purpose 
in the district from which he 
was thus set off, . . • 

10. Persons about-to remove from 
a district must be included in 
a tax list, if they arc actually 
inhabitants of the district when 
the list is made out, 

il. A tax being voted to build a 
school-house, the tax list made 
out and a warrant issued, the 
collection of the tax can not 
be suspended by vote of a 
district meeting, 

i2. A store and lot must be taxed 
in the district in which they are 



282 
333 
333 

338 



41 



60 



64 



66 



68 



71 



7S 



8S 



86 



91 



102 



26. 



27. 



30 



situated; but goods in a store 
are to be taxed in the district 
in which the owner resides. 
No real estate, except such aa 
lies in a school district, can be 
taxed in it for common school 

purposes, 

Bridge companies are taxable 
in the school districts where 

the toils are collected, 74 

A tax can not be laid on the 
property of a district to pay 

school bills, 77 

A. B. having two farms sepa- 
rated by a district line, is tax- 
able in each district, «.. 81 

Th^- vendor of a farm, remain- 
ing in ix)ssession, is liable for 

taxes assessed on it, 

Real estate is taxable where it 
lies, and personal property 
where the owner resides,. . . . 
Rule of taxation applied to a 

particular pa.^e, 89 

Taxes for fuel or repairs may 
be voted at annual meetings. 
Separate tenancies are excep- 
tions to the general rule of 
taxation with respect to farms 
lying partly in two districts, . 
Trustees are bound to know 
the condition of the taxable 
property of their districts, so 
that in assessing taxes no per- 
son shall be improperly taxed, 108 
A tax to pay the rent of a 
school room cannot be assess- 
ed on those who send children 

to school, 

Taxes ought to be assessed 
within the time prescribed by 
law; butquere? whethertrus- 
tees may not assess them after 
the expiration of the time.' .. 
If the inhabitants of a district 
direct a tax to be collected in 
a mode not lecognize.i by law, 
and the trustees execute such 
direction, the Supeiintendent 

will not interfere, 

The toll-house and lot of a 
bridge company are not taxa- 
ble as real estate, 

Rule of taxation in relation to 
real estate purchased after the 
formation of a school district, 

applied to certain cases 140 

A distinct possession carries 
with it a liability to taxation,. 142 
Two taxes voted at the same 
time may be included in the 
same tax list, 168 



114 



117 



117 



132 



466 



INDEX TO DECISIONS. 



30. A tax cannot be voted to pay 
costs of suit recovered against 
the trustees of a school dis- 
trict, 166 

31. A tax to build a school-house 
may be raised, but should not 
be expended, before the dis- 
trict has acquired such an in- 
terest in the site as to be able 

to control the house, 168 

32. A tax cannot be raised to build 
a school-house on a site select- 
ed without legal, authority, 
(see note,) 168 

33. When an old school-house is 
sold and a new one built, a 
district cannot raise by tax 
$400 in addition to the avails 

of the sale of the old house, . . 183 

34. Trustees cannot reassess a tax 
to make up a deficiency on 
account of the inability of an 
individual to pay his portion ; 
nor can they make out a new 
rate bill in such a case, 185 

35. A tax to build a school-house 
cannot be expended until a 
site is chosen and a title to it 
obtained, 187 

36. Promissory notes should not be 
taken for taxes, 187 

37. Taxes must be collected in the 
mode prescribed by law, .... 192 

38. The ownership of the soil car- 

ries with it a right of property 
in permanent erections on it: 
but if a school-house is built 
by subscription, on a site pur- 
chased by a district, a tax may 
be voted to purchase the 
house, 193 

39. A tax may be voted for two 
authorized objects without 
specifying the amount to be 
raised for each, 195 

40. A tax may be voted to repair 
a school-house, though the dis- 
trict has no title to the site,. . 195 

41. Persons annexed to a new dis- 
trict with their consent, may 
be taxed for a school-house, 
though they may have paid a 
tax for the purpose within four 
years, 196 

42. If a school district is broken 
up, the persons belonging to 
it are liable to be taxed for a 
school-house in the districts 
to which they are annexed, 
though they may have paid a 
tax for the same purpose with- 
in four years 203 



43. A tax must be for a specific 
object, 218 

44. Trustees cannot levy a tax 
without a vote of the district, 222 

45. A tax cannot be voted to buy 
a record book for a school dis- 
trict, (but see note,) 228 

46. In voting a tax to purchase a 
site, a sufficient sum may be 
included to pay for recording 

the deed, 228 

47. Trustees, guardians, executors 
and administrators, are taxa- 
ble in their representative 
character where they reside 
for personal property in their 
possession, whether the real 
parties in interest are benefit- 
ed by the expenditure of the 

tax or not, 230 

48. Money canrtot be raised by tax 
in a school district for contin- 
gent uses, 233 

49. Taxes must be paid in money, 245 

50. A district may repeal a vote 
to raise a tax if no proceedings 
have been commenced in pur- 
suance of such vote, 261 

51. Persons worth fifty dollars may 
vote and must be taxed, 
though they may have been 
omitted in the town assess- 
ment, 262 

52. It may happen that persons not 
liable to be taxed in a school 
district, are entitled to vote to 
raise taxes on the district,. . . 262 

53. Errors in assessing taxes may 

be corrected after one month, 275 

54. A tax cannot be voted for 
globes and school apparatus, . 280 

55. Taxes should be promptly col- 
lected, 282 

56. If a tax is voted in express 
terms, and a direction subse- 
quently given as to the time 
and manner of collecting it, 

the direction is void, 282 

57. The provision exempting from 
taxation for building a school- 
house persons who have with- 
in four years paid a tax for the 
purpose in another district, 
from which they have been set 
off without their consent, does 
not extend to taxes voted to 
furnish a school-house with 
necessary appendages, 284 

58. If a taxable inhabitant sells his 
farm and remains in the dis- 
trict, he is liable to be taxed 
on the amount of the purchase 



INDEX TO DECISIONS. 



467 



money paid or secured to be 
paid as personal property, and 
the purchaser is taxable for 
the farm according to its asses- 
sed value on the last assess- 
ment roll of the town, 285 

59. A tax to purchase a school dis- 
trict library cannot be voted at 
a meeting of which no notice 
is required bylaw to be given, 286 

^. The inhabitants of school dis- 
tricts cannot vote a tax to pro- 
vide fuel for singing schools,. 289 

"SI. A tax cannot be laid to erect a 
building to be occupied joint- 
ly as a school-house and a 
meeting-house, 290 

62. Taxable inhabitants only can 

be included in tax lists, 291 

63. If a person moves into a dis- 
trict after a tax list is made 
out, he cannot be included in 

it 291 

64. When trustees of districts find 
it necessary in assessing a tax 
to proceed in the same manner 
as assessors of towns, they are 
allowed twenty days in addi- 
tion to the month within which 
the tax list is required by law 

to be made out, 303 

*»5. If, through the neglect of trus- 
tees, a tax to build a school- 
house is not collected within 
a reasonable time, and before 
the collection is made, a new 
district is formed and an inha- 
bitant set off to it, the Super- 
intendent will remit so much 
of the tax to build a school- 
house in the districtfrom which 
such inhabitant was taken as 

was assessed to him, 308 

If a tax is raised in a school dis- 
trict for any object, and the 
whole amount is not required, 
the balance may be applied by 
vote of the district to any oth- 
er authorized object, 315 

In assessing taxes in joint school 
districts, the last assessment 
roll in each town must be fol- 
lowed with respect to the tax- 
able property within it, al- 
though the assessors of the 
two towns may have different 

standards of valuation, 815 

68. A tax cannot be voted for ar- 
rearages, or to reimburse trus- 
tees for moneys expended by 
them, unless it appears by the 
vote that the money is to be 



m. 



«7. 



applied to one of the objects 
for which taxes may by law be 
voted, 316 

69. If a special meeting is called 
for the purpose of laying a tax 
to buildaschool-house, the no- 
tice is sufficient to justify the 
inhabitants in voting a tax to 
purchase a house already con- 
structed, 317 

70. In assessing a lax for school dis- 
trict purposes, personal notice 
to the persons interested need 
not be given where a reduction 
is claimed, or where the va- 
luations of property cannot be 
ascertained from the last as- 
sessment roll of the town, . . 319 

71. All the trustees of a district 
should be present in assessing 
a tax; but if a tax is assessed 
by two, without consulting the 
third, the collector will be pro- 
tected in executing the war- 
rant, 327 

72. If the commissioners of com- 
mon schools certify that a lar- 
ger sum than $400 is neces- 
sary to build a school-house, 
the excess cannot be raised by 
tax without a vote of the dis- 
trict, 339 

73. If, after $400 has been expend- 
ed in erec'inga school-house, 
and an additional sum has been 
raised on the certificate of the 
commissioners, a further sum 
is required, such further sum 
may be voted, if certified by 
the commissioners to be ne- 
cessary, 339 

74. If a man has been assessed on 
the last assessment roll of the 
town for a greater number of 
acres than his farm contains, 
he may claim a reduction be- 
fore the trustees of a school 
district when a tax is assessed 
for common school purposes; 
but if he neglects to make such 
claim, he will not be relieved 
on an appeal to the Superin- 
tendent, 341 

Trustees must include in a tax 
list every taxable inhabitant 
residing in the district at the 
time the list is made out,. . . . 341 
Trustees cannot assess an in- 
dividual for personal property, 
if he has been taxed for none 
on the last assessment roll of 
the town, upon the supposi- 



75 



76 



468 



INDEX TO DECISIONS. 



tion that he may have more 
than his debts amount to,.... 341 
T7. If before a tax is assessed the 
trustees ascertain that the 
whole amount voted will not 
be required, they may make 
outa taxlist fora smaller sum, 342 

78. Rail-road companies are taxa- 
ble on their rail-ways, and oth- 
er fixtures connected there- 
with, as real estate, in the 
school districts within which 
such real estate is situated,., 350 

79. If a special meeting is called 
under a notice to take into 
consideration the propriety of 
building a new school-house, 
and, if thought pioper, to lay 
a tax for the purpose, it is a 
sufficient no ice to warrant the 
inhabitants at such meeting 
to vote a tax to repair the old 
school-house, 351 

80. If an inhabitant removes from 
a district beff re the end of one 
month after a tax is voted, and 
before the tax list is delivered 
to the collector, he cannot be 
included in it, the tax list not 
being complete until the end 
of the month, if it remains in 

the hands of the trustee>',. .. 357 
Sec Appendages to School-House, 

1, 2. 
Assessment of Tastes. 
Assessment Roll of Town, 1, 

2, 5, 6, 7. 
Bank, 1. 

Collector, 5, 6, 11, 13. 
Executors. 

Fuel, 2, 3. 

Ministers of the Gospel, 1, 2, 

3, 4, 5. 
JVon- Residents. 
JVotice, A, 5. 

Property of School Districts, 

1, 1«. 
Rate Bill, 4. 
School-House, 1, 2, 7, 8, 10, 

le. 

Suits, 1 , 2. 

Tax List. 

Teachers, 7, 27. 

Tenants. 

Trustees of School Districts, 

2, 10, 24, 3C. 
Vessels. 

F'otes and Voters, 11. 
Warrant., 6. 
TAXABLE mHABITANTS. 
See Children. 7. 
Residence, 3. 



See Site for School-House, 12, IS. 
Taxation and Taxes. 
Tax List, 1,2, 3. 
Trustees of School Districts, 18. 

TAX LIST. 

1. In making out a tax list the 

names of the taxable inhabi- 
tants must be given. " The 
widow and heirs of A. B. de- 
ceased" is not a sufficient de- 
signation of the persons to be 
taxed , 4# 

2. Tax lists must include all taxa- 

ble inhabitants; but rate bills 
include such only as have sent 
children to school, 8T 

3. A tax list must include all the 

taxable inhabitants of the dis- 
trict at the time when it is 
made out, though some of them 
may have become so after the 
tax is voted lOS* 

4. Persons removing from a dis- 

trict after a tax list is made 
out are liable for their portion 

of the tax, 27S 

See Assessment Roll of Town, 2, 

3, 5, «, 7. 
Collector, 5. 

Errors and Omissions, 1. 
Suits, 2. 
Taxation and Taxes, 1, 10, 

11,29,62, 63, 75, 77,80. 
Trustees of School Districts, 

18, 29. 
Warrant, 5. 

TEACHERS. 

1. Teachers are not allowed fees 

on sums voluntarily paid to 
them for tuition, 31 

2. Trustees of school districts can- 

not transfer to a teacher the 
power of enforcing the collec- 
tion of his wages, 33 

3. If an inspector of common 

schools is employed as a teach- 
er, he must be examined like 
all other teachers 38 

4. An intemperate man ought not 

to be employed as a teacher of 
common schools, 3S 

5. Two teachers may be employed 

in a school district, if it is ne- 
cessary ; but a high school 
ought not to he set up by the 
trustees witiioTit the concur- 
rence of the inhabitants, ... 52 
6'. A teacher should not be ques- 
tioned by the inspectors as to 
his religious opinions: but a 
person who openly derides ali 



INDEX TO DECISIONS. 



469 



religion sho'ild not be employ- 
ed as a teacher, 59 

7. If a teacher cannot procure a 
certificate of qualification from 
the inspectors, his wages may 
be collected of those who send 
children to school, and fuel 
may be provided by tax, if a 
tax is voted for the purpose,. 61 

S. Trusteesshould see, when they 
employ a leachnr, that he has 
a^pertificate of qualification, . 76 

*>. If a teacher does not pass an ex- 
amination before the inspec- 
tors, his wages must be collec- 
ted by a warrant against those 
who have sent their children 
to school , 76 

10. A teacher, who at the com- 
mencement t)f a term of in- 
struction, holds a certificate 
dated within a year, is a qua- 
lified teacher to the end of the 
term 92 

J 1. Teachers cannot demand pay- 
ment of their wages until the 
collector has had 30 days to 
collect them, 101 

12. The inspection of a teacher af- 
ter the close of a term, with a 
view to enable him to receive 
the public money, is inadmis- 
sible, excepting under extra- 
ordinary circumstances, 120 

1.3. Teacher may dismiss his school 

on Saturday afternoon, 121 

14. A teacher may employ neces- 
sary means of correction to 
maintain order; but he should 
not dismiss a scholar from 
school without consultation 
with the trustees, 145 

15. The wages of two teachers em- 
ployed for different terms can- 
not be included in the same 
rate bill, 168 

16. If a teacher is examined and 
the inspectors are satisfied, 
but neglect to give a certifi- 
cate at the time, it may be gi- 
ven at a subsequent time and 
take effect from the date of 
the examination, 200 

i7. If a teacher is engaged at a 
given sum per month, and the 
public money is paid to him, it 
is to be in part payment of his 
wages, 205 

18. There is but one legal mode of 
paying teachers, 206 

19. Teacher's board bills cannot be 



included in r rate bill, or paid 
out of the public money,. . . . 206 

20. If two teachers are employed 
at the same time, the rate bill 
fi'r their wages must be gra- 
duated by the number of days 
of attendance, without refer- 
ence to the studies or branch- 
es in which different children 
may have been instructed, , . 207 

21. If a teacher's certificate is an- 
nulled, the trustees may dis- 
miss him, 211 

22. The wages of a teacher not 
qualified accordingto law may 
be co'lected by a rate bill, but 
he cannot receive the public 
money, 213 

23. If inspectors examine a teach- 
er, and refuse to give him a 
certificate of qualification, the 
Superintendent will not inter- 
fere without very strong rea- 
sons, 21.'> 

24. Mode of paying the public mo- 

ney to a teacher in a special 
case explained, 232 

25. Trustees cannot transfer to 

teachers the authority of pro- 
secuting individuals for tuition 
bills. But trustees must col- 
lect their dues by a rate bill, 
notwithstanding an agreement 
on the part of the teacher to 
collect them himself, 288 

26. The inhabitants of school dis- 
tricts should sustain the trus- 
tees in employing competent 
teachers, and in their efforts 
to advance the standard of edu- 
cation 30! 

27. The expense of conveying a 
teacher home cannot be paid 
by tax, or included in a rate 
bill, 313 

See Certificate of qwalification. 
Children, 13. 
Collector, 2. 
Colored Persons, 1. 
Corporal Punishment, 1, 
Inspectors nf Common Schools. 
Public or School Moneys, 2, 

8, 9, 14, 27, 28, 29, 30, 31. 
Punishment. 
Rate Bills. 
Schools, 1, 4, 5. 
School Districts, 17, 
Town Funds and Lands, 2. 
Trustees of School Districts, 

3, 4, 11, 13, 16, 27, 33, 35. 



INDEX TO DECISIONS. 



TENANTS, 
A tenant is taxable, whether a 
householder or not, for land 
occupied and improved by 

him, 155 

See Ministers of the Gospel, 2, 4. 
JVon-Itesidents, 2, 5, 6, 9. 
Taxation and Taxes, 2, 3, 21. 

TITLE TO SITE. 
See Site for School-House, 3, &, 6, 8. 
Taxation and Taxes, 8, 

TOLLS. 
See Taxation and Taxes, 14, 26. 

TOLL-HOUSE AND LOT. 
See Taxation and Taxes, 26. 

TOWN AGENT. 
See Town Funds and Lands, 5. 

TOWN CLERK. 
See Assessment Rfll of Town, I. 
JVotice, 7. 
Trustees of School Districts, 

22. 
TOWNS, DIVISION OF. 

1. If a town is divided, and a new 

town erected, the latter i» en- 
titled to an equitable share of 
the school moneys apportion- 
ed to the fonner, unless the 
law shall have otherwise pro- 
vided in the particular case,. , 55 

2. When a town is divided, and a 

new one formed, or when two 
existing towns are altered, the 
public moneys are apportion- 
ed between them according to 
the number of children be- 
tween 5> an 1 16 years of age,. 171 

g. When a town is divided and a 
new one formed, after the as- 
sessment of taxes ) as been 
made in the former, the school 
moneys levied on such town 
should, when collected, be di- 
vided in the same proportion 
3)S the moneys derived from 
the common school fund, . . . . 3S2 

See Organization of School Dis- 
tricts, 1 
TOWN FUNDS AND LANDS. 

S- The proceeds of lands set apart 
for the support of the common 
schools in a particular town, 
must be applied exclusively 
for the benefit of the inhabi- 
tants of the town to which the 
lands belong, 21 

2, The proceedsof the school fund 
of the town of Fabius, must 
be applied by the trustees of 



the fund as the inhabitants 
may direct. But trustees of 
school districts must apply 
such proceeds to the payment 

of qualified teachers, 25 

S. The school fund of Edmeston 
must be applied exclusively 
for the benefit of the common 
schools of the town,. 124 

4, The funds arising from the gos- 

pel and school lots belonging to 
the twenty townships &n the 
UnadilTa river, are to be ctppli- 
ed exclusively to the benefit 
of the inhabitants of snch 
townships, ,.,... 2^ 

5, None brat inhabitants of the 

township can participate in 
the election &f a town agent, 
or in directing the application 
to be made of the funds aris- 
ing from the gospel and school 
lots, 22S 

§. Permanent town fands must be 
applied excBtfsively for the be- 
nefit of the common schools 

in the town, 300; 

TREASURERS OF COUTfTIES. 

See Public or School Moiuys, 26. 

TRESPASS. 
See Trustees of School Districts^ 
14. 

TRUSTEES. 
See Taxation and Taxes, 47, 
TRUSTEES OF SCHOOL DIS- 
TRICTS. 

1. Trusteesof school districts must 

render an account of their re- 
ceipts and expenditures, at 
the expiration of their officej 
it is their duty als© to give 
such reasonable explanations 
as may be required, 5S 

2. Trustees are not authorizei^ to 

receive moneys for taxes, or 
on rate bills ■; but payments 
may be made to teachers for 
their wages, and on sums so 
paid, the collector loses his 
fees 54 

3. Trustees have the exclusive 

right of employing teachers,. 6SE 

4. In employing teachers, trustees 

^ould so far consult the feel- 
ings and wishes of the inhabi- 
tants as not to- give offence to 

a large portion of them , 72 

'5. Trustees of school districts are 
not required to take and sub- 
scribe the oath prescribed in 
the constitution, ..... c ..>. ^ . 9S 



INDEX TO DECISIONS. 



471 



6. If trustees hire a room without 

being authorized by a vote of 
the district, they are person- 
ally responsible for the rent,. 114 

7. Trustees cannot be compelled 

to pay interest on school mo- 
ney in their hands, nor can 
the inhabitants cause it to be 
taken out of their hands and 

loaned at interest, 127 

S. Trustees may give notice of a 
meeting when the clerk refu- 
ses to do so, 141 

9. A trustee of a school district 

cannot be clerk or collector,. 142 

10. If trustees are directed by a 
vote of the district to make 
such repairs as they may think 
proper on the school-house, 
and the district afterwards re- 
fuses to lay a tax for the pur- 
pose, the Sup't will order an 
amount sufficient to cover the 
jeasonable expenditures of the 
trustees to be raised, 161 

11. If trustees contract to pay a 
teacher a specific sum per 
month or per scholar, the 
mode of providing for the pay- 
ment of his wages must be the 
same in either case, 165 

12. Trustees cannot sue an associ- 
ate trustee for neglecting to 
discharge the duties of his of- 
fice, 182 

13. Trustees are unwarrantable 
under the general authority to 
employ all teachers, if they 
refuse to employ any, and thus 
deprive the district of its pub- 
lic money, 187 

14. Trustees may sue for trespass 
in case the district school- 
house is forcibly entered with- 
out their consent, 188 

15. One trustee cannot open a 
school in pursuance of a vote 
of the district, nor can the 
other two trustees open a 
school until the inhabitants 
have designated the place, if 
there is no school-house in the 
district, 190 

16. Contracts by trustees of school 
districts for teachers' wages 
are binding on their successors 

in office, 191 

17. Trustees being authorized by 
a vote of the district to do any 
act involving an expenditure 
of money, must be indemnifi- 
ed by the district, 222 



18. Trustees, in making out a tax 
list, are bound to know who 
are and who are not taxable 
inhabitants of the district, . . . 225 

19. If a trustee refuses to serve, 
the district may elect another 
person to the office, 239 

20. Trustees are answerable only 
for such moneys as come into 
their hands, 247 

21. Trustees are sole judges of 
the ability of a person to pay 

his school bills 254 

22. Trustees are bound to send 
or deliver their annual reports 

to the town clerk, 256 

23. If one of the trustees refuses 
to unite in making out a rate 
bill, the other two may act 
without his concurrence, . . . . 258 

24. If a warrant for the collection 
of a tax is signed by two trus- 
tees only, the presence of the 
third at the issuing of the war- 
rant will be presumed, 258 

25. Trustees must settle all ac- 
counts arising out of contracts 
executed before the expira- 
tion of their term of office, . . . 273 

26. Trustees in office must sign a 
warrant, in order to give it va- 
lidity, 273 

27. Contracts by trustees with a 
teacher for his wages are bind- 
ing on their successors in of- 
fice, 282 

28. Trustees should call a special 
meeting when requested by a 
respectable number of the in- 
habitants, 283 

29. If trustees neglect to raise and 
pay over the amount appor- 
tioned to a new district, their 
successors in office must make 
out a tax list and collect the 
amount so apportioned, ... . 284 

30. If the term of service of the 
trustees and collector has ex- 
pired, and a warrant for the 
collection of a school bill has 
run out in the hands of the 
latter, the successors of such 
trustees must renew the war- 
rant and direct it to the suc- 
cessor of such collector 307 

31. If trustees refuse to prosecute 
their predecessors for an un- 
paid balance, there is no mode 

of compelling them to do so,. 313 

32. Trustees of school districts 
must see to the execution of 
all contracts entered into by 



472 



INDEX TO DECISIONS. 



them; but this rule will not 
be allowed to interfere with 
the legal rights of third per- 
sons, 313 

33. Trustees are not the judges of 
the qualifications required for 
teachers in their school dis- 
tricts, 325 

34. Trustees of school districts 
have certain corporate powers 
conferred on them by the sta- 
tute; but their jurisdiction is 
special and limited, and in the 
exercise of theif powers they 
roust confine themselves strict- 
ly to the directions of the sta- 
tute, 328 

35. Trustees cannot purchase pro- 
missory notes given by a teach- 
er to third persons and set 
them off in payment of his 
wages, 328 

36. If a tax is voted for a particu- 
lar object, and the trustees ex- 
pend a greater amount, they 
are without remedy if the in- 
habitants refuse to vote an ad- 
ditional sum to reimburse 
them , 33g 

37. A commissioner of common 
schools may be a trustee of a 
school district, 353 

38. The inhabitants of a school dis- 
trict cannot authorize the trus- 
tees to borrow money, 353 

See Alterations ill School Bi strict s, 

1,2, 7, S, 10, 11. 
Annual Meetings. 
Annual Reports of Trustees. 
Assessment of Taxes, 1 . 
Assessment Roll of Town, &. 
Chilli r en. 
Collector of School Districts, 

1, 2,8, 9, 10, 12. 
Errors and Omissions, 1. 
Fuel, 6. 

Indigent Persons, 3. 
Joint Districts, 3. 
JSTotice, 3,4, 5, 15, 19. 
Poor-Honses 
Public or School Moneys, G, 

12, 20, 28, 29. 
Rate Bills, 2, 3, 4, 6. 
Records, 2. 
Schools, 1. 
School Districts, 6. 
School-House, 9, 14. 
Site of School- House, 13, 14. 
Sziits, 1. 
Taxation and Taxes, 7, 22, 24, 

25, 30, 34, 44, 64, 65, 68, 71, 

74, 75, 76, 77, 80. 



See Teachers, 2, 5, 8, 13, 14, 21, 25, 
26. 
Tkiition. 
Vacancies, I. 
Warrant, 1, 2, 4, 6. 

TUITION. 
If a parent is not wholly exempted 
by the trustees, he must be 
charged the full price of tui- 
tion, 47 

See Children, 5. 
Collector, 2. 
Suits, 1. 

Taxation and Taxes, 15. 
UNADILLA TWENTY TOWN- 
SHIPS. 
See Town Funds and Lands, 4. 
UNIMPROVED LOTS. 
See JVon-Residents, 5. 

VACANCIES IN OFFICE. 

1. Accidental vacancies in district 

offices may be filled at special 
meetings called by the trus- 
tees, 4& 

2. When the offices in a school 

district are all vacarit,.the com- 
missioners of common schools 
may call a meeting to fill them, 112 

3. Vacancies in district offices, 

when the district lies in more 
than one town, must be filled 
by the commissioners of both 
towns, 147 

4. Commissioners should not fill a 

vacancy in an office in a school 
district, unless the district ne- 
glects to fill it for one month 
after knowing that it has oc- 
curred , 147 

5. If a district fills a vacancy in the 

office of trustee after one 
month, by an election, the 
election is valid, and the com- 
missioners cannot at a subse- 
quent time make an appoint- 
men*^ to the same vacancy, . . 179 
See Refusal to serve, 1. 

VACANT LOTS. 
See J\ron-Residents, 5. 

VENDOR. 
See Taxation and Taxes, 17. 

VESSELS. 

1. Vessels, canal-boats, &c., are 

not exempt from taxation,. . . 8 

2. A sloop must be taxed where 

the owner resides, 16© 

VOID PROCEEDINGS. 
1. Proceedings void for want of au- 
thority will be declared so, on 
application to the Superinten- 



INDEX TO DECISIONS. 



473 



dent, after the expiration of 
the tinr»e limited for bringing 
appeals 320 

2. If parties are apprized that pto- 
ceedings are to be objected to 
on the ground of illegality, it 
is their own fault if they do 
acts, by virtue ol' such proceed- 
ings, without assuring them- 
selves that they are legal,... . 320 

Sec JVutice, 10, 19. 

VOTES AND VOTERS. 

1. If in balloting for district officers 

the number of ballots exceeds 
the number of voters, a second 
balloting should take place,.. 18 

2. A person taking up his residence 

in a school diitrict, becomes 
by that act a voter, if he has 
the requisite qualifications, , . 18 
S Apersonwhoisassessed to work 
on the highway is entitled to 
vote at school district meetings, 29 

4. A person coming into a school 

disirict the day before a dis- 
trict meeting, with the bima 
yideintention of residing there, 
is a voter, 71 

5. Persons having certain qualifi- 

cations may vote at district 
meetings, 71 

6. If a legul vote, which if given 

might have affected the result, 
is rejected, proceedings will 
be set aside on appeal, 84 

7. Clerks or journeymen, of law- 

ful age, are entitled to vote in 
school districts, if they have 
paid taxes on the highway, . . 85 

8. An illegal vote does not neces- 

sarily vacate the proceedings 
of the meeting at which it is 
given; but if the illegal vote 
might haveafiected the result, 
an application maybe made to 
the Superintendent to set a- 
side the proceedings, 94 

9. A person exempt from a tax by 

reason of perlbrming military 
seivices, may vote at school 
district meetings notwithstand- 
ing such exemption, if the pay- 
ment of the tax would have 
given him a right to vote, . . . 142 

10. Illegal votes not affecting the 
result do not render proceed- 
ings void 176 

11. Persons au horized to vote for 
district officers, may vote for 
a tax though they may not be 
liable to be assessed for it,. . . 183 

12. If tlie votes of the individuals 



in favor of a site for a school- 
house, are procured by appeals 
to their pecuniary interests, 
the proceedings will be set 
aside, 247 

13. Colored persons may vote at 
school district meetings, .. .. 318 

14. If part of a resolution passed 
by the inhabitants of a school 
district is void, the whole re- 
solution is vitiated, 353 

See Aliens. 

Jllteiations in School Dis- 
tricts, 5, 9. 

Errors and Omissions, 4. 

Fuel, 6. 

Ministers of the Gospel, 6. 

Public or School Moneys, 7, 
18. 

School Districts, 1. 

School-House, 15. 

Site for Sch Old- House, 2, 3, 
6, 7,8, 13, 14. 

Taxation and Taxes, 7, 11, 
44, 60, 51, 52. 66, 66, 72, 
73, 79. 

Trustees of School Districts, 
6, 17, 36. 

VOUCHER. 
See Commissioners of Common 
Schools, 10. 

WARRANT. 

1. Trustees of school districts may 

renew a warrant to collect a 
tax, whether issued by them- 
selves or their predecessors,. 27 

2. If a district meeting votes to re- 

new a warrant and collect a 
tax, the trustees may regard 
it as an original vote to raise 
the amount specified, and is- 
sue a new warrant for its col- 
lection, 27 

3. If a warrant to collect a tax is 

renewed, the collector in of- 
fice at the time of such renew- 
al must execute it, 47 

4. If a warrant to collect a tax is 

made out under the seal of the 
trustees, as required by law, 
the renewal may be without 
a seal , 63 

5. Warrants annexed to tax lists 

and rate bills, are to be exe- 
cuted in the same manner as 
warrants issued to the collec- 
tors of towns, 143 

6. If a warrant is issued to collect 

a tax which has not been as- 
sessed according to the last as- 
sessment roll of the town, and 



474 



INDEX TO DECISIONS. 



property is taken and sold, the 
trustees who issued the war- 
rant are answerable as tres- 
passers: but the warrant is a 
complete protection to the col- 
lector who executes it, . . . . 281 

7. A warrant runs from its delive- 

ry and not from its date, .... 286 

8, A collector cannot sell proper- 

ty after the expiration of his 
warrant, 287 



See Collector, 5, 8, 9. 10. 
Rate Bill, 2, 3. 
Teacher, 9. 

Trustees of School Districts, 
24, 26, 30. 

WINTER. 
See Public or School Moneys, 17. 

WOOD-HOUSE. 
See Taxation and Taxes, 4. 



INDEX 



LAWS, FORMS AND REGULATIONS. 



ALBANY. 

Commissioners and inspectors, § 167, 399 

Vacancies liow filled, § 168, 399 

Powers of commissioners, § 169, 170, 399 

Powers of trustees, $ 171 , 399 

Clerk of common council, § 172, .... 399 
Apportionment of school moneys, 

§173 399 

Chamberlain to receive moneys, M74, 399 
Moneys to be raised by tax, § 175,. . , 400 
Moneys to be kept distinct, § 176,-. . 400 
Commissioners to apportion moneys, 

§ 177,178, 400 

Powers and duties of officers, § 179,. 400 

Lancaster school, § 180, 401 

District west of Perry-street, §181,. 401 
Money for schools east of Perry-st., 

§ 182, 189, 401, 403 

Moneys to be paid to Chamberlain, 

§183, 401 

Moneys how apydied, § 184, 402 

Districts may be increased, § 184, . . . 402 
Other moneys how apportioned, 

§185, 402 

Districts west of Perry-street, § 186,. 402 
School-house in district No. 2, $ 187, 402 

Percent, on rate bills, §188, 403 

Tax for building school-houses east of 

Perry-street, § 1, 403 

Buildings to be of brick or stone, §2, 403 
Commissioners to superintend, &c., 

§3 403 

Commissioners to give security, § 4, 404 

Commissioners to be paid, §5, 404 

Loan to be made, § 6, 404 

Interest on loan, § 7, 404 

Lancaster school-house, § 8, 404 

Lots and buildings, exempt from tax- 
es, ^9, 405 

Contingent expenses, § 1, 405 

Orphan Asylum, § 2, 405 

Moneys remaining on hand, § 3,.... 405 
Restriction on districts east of Perry- 
street, §4, 405 

District clerks, § 5, 406 

AMENDMENTS. 

Laws of 1837, 417, 418 

ANNUAL REPORTS. 
Of the Superintendent, § 1, 363 



Of commissioners of com. schools, 

^ 29, 370, 417, 441 

Of trustees of districts, 104,.. 386, 417 

430, 431 

Of county clerks, $ 125, 390 

APPEALS, 

To Superintendent, § 124, 389 

Regulations respecting, 443 

APPORTIONMENT, 
How made by Superintendent, § 3,. 364 

When a town is divided, § 6, 364 

To be certified to comptroller and 

clerk of each county, § 7, 364 

How made to school districts, 367 

When made to new districts, § 25, 26, 369 
When money of district remains one 

year in hands of commissioners, 

§27, 369 

Of fuel when not provided by tax, 

§9-3, 384 

Of taxes, §86, 383 

ASSESSMENTS, 
Of school moneys on each town, §16, 366 

438 

On districts, how made, 383 

(See Taxes, Trustees, &c.) 

BOARD OF SUPERVISORS. 

To assess an amount upon each town 
equal to that apportioned by Su- 
perintendent, § 16, 17, 366 

When to assess double that amount, 438 

BOOK CASE, 

For district library, § 62, 377 

Tax for, § 62, 377 

BONDS, 
To be given by coUfector of district, 

§120, 388 

Form 429 

If not given, office of collector vacat- 
ed, f 121, 389 

Trustees to deliver to successors, 
§117, 388 

BRIGHTON. 
Coloured children how to be taught, 
§214 412 

Commissioners to be trustees, § 215, 412 



476 



INDEX TO LAWS, 



BROOKLYN. 
Commissioners and inspectors of com- 
mon schools, § 65, 414 

Common schools, § 15, 415 

Trustees to report, § 16, 415 

School-houses, § 1 , 416 

CATSKILL. 

School district No. 1, § 203, 409 

CERTIFICATES, 
Of apportionment to whom sent, § 7, 364 
Copies to be furnished by county- 
clerk to supervisors' clerk and trea- 
surer, § 15, 366 

Of teachers by whom given, 373 

Form of teacher's certificate, 443 

How annulled, 373 

To be dated within one year of the 

time of employment, § 107, 387 

Of commissioners to raise more than 

$400 for school-house, §68 378 

COLLEC i OR, 

How chosen, § 61, 376 

Tenure of his office, § 80, 380 

Vacancies how filled, §81, 380 

Forfeiture for refusal to serve, § 82,. 380 

May resign, §83, 381 

His duty in execuimg warrants, §98, 385 
428, 429, 430 

His fees, § 118, 388 

To collect and pay over moneys, 

§ 119, 388 

To give bond, § 120— form 388, 429 

If bond not given, office vacated, 

§121, 389 

Forfeiture for neglect, § 122 389 

Trustees may sue him, § 123, 389 

COMMISSIONERS, 
To form and alter districts, § 19 sub. 

1 367 

To deliver description to town clerk, 

§ 19, sub. 4, 367 

To apply for school moneys, § 19, 

sub.5, 367 

When to apportion school moneys to 
the several districts, § \9, sub. 6, 7, 367 

368 
To form districts of two or more 

towns, § 20, 368 

To obtain consent of trustees, §21,. 368 
When to withhold moneys from a 

district, §22,23,24, 368, 369 

When to apportion money to new- 
district, formed so near Jan. 1, as 
not to be able to make report, § 25, 

26, 369 

How to dispose of money remaining 
in their hands for one or more 

years, §27,28, 369 

Their annual report, § 29 — form of,. 370 

441 
Forfeiture for neglect, § 31, 32, 38, . . 370 
371, 418 
Their accounts how kept and audit- 
ed, § 34, 371 

To render account to their succes- 
sors, § 35, 371 

Balance remaining in their hands to 
be paid over, § 36, 371 



When and how prosecuted, § 39, 40, 

41, 372 

A corporation for certain purposes, 

§42, 372 

Their clerk, § 43, 372 

Inspectors by virtue of their office, 

§ 44, 373 

To give notice within 20 days of for- 

nmlion of district, § 55, 375 

When to renew notice, §57, 376 

When to certify sum to be raised for 

school-house, § 68, 373 

Joint meeting of commissioners, § 69, 37S 
Their consent required to alteration 

of site of tchool-house, § 70, 378 

To be electors of town, 436 

To file acceptance of office within ten 

days 437 

Forfeiture for refusing to serve, 437 

Their compensation fixed, § 5, 418 

Who to accept resignation, 425 

When their decision appealed from, 

to retain money, (8th regulation, K 444 
They should allow errors of form in 

report of trus'ees to be corrected, 

(regulation 7,) 444 

Forms in relation to their duties,... 438, 

439, 440 

When to appoint trustees, §81, .... 380 

COVERT, 
Commissioners when to meet, § 213, 411 

COUNTY CLERK, 
His duty on receiving apportionment, 

§ 15, 366 

To transmit school reports to Super- 
intendent, §125, 390 

Penalty for neglect, §126, 390 

When to give notice to town clerk, 
§128, 390 

DECISIONS, 

Of the Superintendent 389 

When to be final, §124, 389 

DISTRICTS, 
Commissioners to form and alter,... 367 
Consent of trustees to alteration, .... 368 
When formed out of two or more 

towns, 368 

When moneys withheld from 368 

Apportionment to new district, 369 

First meeting and proceedings, 375, 376 

Form of district report, 430 

Form of do. for joint district, 431 

Property how held, §111, 387 

Form of rate bill and tax list, . . 427, 428 

Apportionment of fuel, 430 

Notice of annual and special meet- 
ings, 433, 434 

When site of school-house altered, 
how property disposed of, § 73, . . 378, 

435 

Minutes of proceedings, 435, 436 

Officers of, 6 80, 330 

Taxes how apportioned in, 383 

Provisions for new districts to receive 

school money, 369 

(See Trustees, Collector and District 
Clerk.) 



FORMS AND REGULATIONS. 



477 



DISTRICT CLERK, 

How and when chijsen, §61, 376 

HiH general duties, §84, 381 

Tenure of his office, §80, 380 

Vacancy how filled, §81 380 

Forfeiture for refusal to serve, or ne- 
glect ..f duty, §G2, 380 

Muy resign, § 8:{, 381 

His duty as to altering site of school- 
house 435, 436 

Forms of notices for meetings, and 
minutes to be kept by him, . 434, 435, 

436 
May be librarian, §64, 377 

DISTRICT MEETINGS, 
Their general powers, § 61, 62, 63, 

64,.,. 376, 377 

To require school moneys to be di- 
vided, 382 

Annual meeting, §66,.. 377 

Special meetings, §67, 377 

Limitation of tax to be \oted, § 63, 

68, 377, 378 

Form of notice, and of proceedings,. 434 

EXEMPTIONS, 
From taxation for school-house, §91, 384 
Indigent persons from teachers' wa- 
ges, sub. 10 §85, 382 

Indigent persons from fuel, § 95, ... 384 

FLATBUSH, 

Moneys how paid, §208, 410 

Moneys how applied, §209, 411 

Moneys how accounted for, §210,.. 411 

FLUSHING, 

Free school association, §211, 411 

Managers to report, §212, 411 

FUEL, 

When to be f-'misiied by tax on dis- 
trict, sub. 5, §61, 377 

How apportioned when not furnish- 
ed by tax, § 94, 95 384 

Form of apportionment, 430 

Trustees to exempt indigent per.^ons, 384 
When trustees to fiirni^li and ciiarge 

delinquent, §96 334 

Form of tax list and warrant, 427 

When added to rale bill, §97, 384 

GATES, 
Colored children to be langhl, § 214, 412 
♦^'ommissioners to be trustees, §215, 412 

GENERAL PROVISION, 
Section 223, 417 

HUDSON, 
School moneys how apportioned, 
§159, 397 

Treasurer to pay moneys, § 160, ... 397 

Moneys how applied, § 161, 398 

Copy of apportionment, § 162, 398 

Moneys to be raised, § 163, 398 

Moneys to be paid over, § 164 398 

Moneys how distribiiied, § 165, .... 398 
.\dsessors to designate inhabitants, 
§166, 398 



INSPECTORS, 

Their duty as to inspecting teachers, 

§45 to 51 373, 374 

To visit schools, §52 374 

To examine into the condition f the 

schools, and to give advice, § 53,. 374 
Each may be ai-signed to a certain 

number of districts, §51, 374 

Abstract of their duties and form of 

certificate, 442, 443 

Their compeiisaliou to be established 

at town meeting, 43/ 

To file acceptance of ofifice with town 

cieik, 437 

Forfeiture for refusing to serve, 437 

Who to accept resignation, 425 

To inspect tciichers annually, § 107, 387 

LIBRARIES, 
Moneys may be raised for, § 62, 63,. 377 
Tax how assessed and collected, § 65, 377 
Speci d noii'^e for tlie meeting, § 62, 377 

Librarian, who may be, § 64, 377 

NEWBURGH, 

School for black ciiiklren, § 1, 416 

Compensation ol teachers, §2, 417 

Restrictions, §3 417 

NEW- YORK, 

Duty of clerk, §129, 390 

Corpnraiiou to raise money, § 130, . 391 
Additional sum to be raised, § 131, 

132 391 

Money to be deposited, §133 391 

Commissioners of school money, how 

appointed, §134, 391 

Vacancies how filled, § 135, 392 

Who ineligible. §136, 392 

Moneys how distributed, § 137 392 

Report of trustees. §138 392 

Duly of commissioners, §139 393 

Moneys h iw apportioned, § 140, ... .393 
When money tobevviihheld §141, 394 
Appeal to tiie Superintendent. § 142, 394 
Alms-house school, § 143, 144, 145.. 394 
Incidental expenses of commission- 
ers, § 146 394 

OVID, 
Commissioners wlien to meet, §213, 411 

POUGHKEEPSIE, 

To be a school district, §200 408 

School m ney how to he paid, § 201, 408 
Trustees to report, §202, 409 

RATE BILL. 
To be made out for teachers' wages, 

§8.5, sub. 13, 382 

To have war ant attached, §98 .385 

•Vlay be renewed, §102 385 

Form of, and 'arrant 428 

When ffiel to be added lo, §97, .... 3S4 
Indigent persons exempt from, § 85, 

sub. 10, 3C2 

RECORD BOOK, 
Tax may be voted for, §6, 418 

REGULATIONS, 

To be printed and di>lrihiited, §8,.. 365 
Of Superintendent relative to appeals, 443 



478 



INDEX TO LAWS 



RESIGNATIONS, 

Of district officers, §83, 381 

Notice of, to whom given, 381 

A bar to recovery of penalties, 381 

Of commissioners, and other town 
officers, 42.5 

ROCHESTER, 
Commissioners of common schools, 
§1. 412 

School tax how raised, §2, 412 

Additional sums, §3 412 

Money how distributed, §4, 413 

School inspectors, §5, 413 

High schools, §6, 413 

School-houses, 6 7, 414 

Rights and privileges of districts, §8, 414 
School-house how repaired, §8,.... 414 

Rochester high school, §9,.,'. 414 

Trustees to report, §10, 414 

Number of schools to be published, 

§11, 414 

SCHOOL-HOUSE, 

How site altered, §70, 378, 435 

How disposed of when new district 

is iormed, § 77, 78, 79, 379, 380 

When and how to be sold, § 73, 75, 378, 

379 
Moneys arising from sale how appli- 
ed, §74, 379 

Tax to build, how voted, §61, sub. 5, 377 
Limited to $400, unless commission- 
ers consent, §68 373 

Duty of trustees to build and keep in 

repair, §85, sub. 5, 382 

Persons exempt from tax for building, 

§91, 384 

Remedy against owner, where tenant 

pays tax for, § 93, 384 

When on division line, or joint dis- 
trict, how teacher and school in- 
spected, §51 374 

SCHOOL MONEYS, 
When apportioned by Superinten- 
dent, §2, 364 

How apportioned when census defec- 
tive, §5, 364 

How when town altered, §6, 364 

Certificate of apportionment, to whom 

given, §7, 364 

When paid to county treasurer, § 11, 365 
Duty of county treasurer in relation 

to, § 12, 13, 14, 365, 366 

When paid to commissioners, § 13, . 365 
When apportioned by commissioners, 

§19, sub. 6 367 

To be applied exclusively to pay qua- 
lified teachers, 368, 438 

To be divided by vote of meeting, 

§85, sub. 9 382 

Town school fund, 418 

Arising from gospel and school lots, 

how applied, 420, 421, 422 

In case of appeal, to be retained by 

commissioners, (regulation 8,) ... 444 
When double the amount of appor- 
tionment to be raised on town, . . . 437 
How to be applied in separate neigh- 
borhoods, § 24, 369 



SEPARATE NEIGHBORHOODS, 
When to be set off and how, § 19, 

sub. 2 367 

How to report, §109, 387 

Penalty for false report, §110, 387 

Form of report [to embrace only the 
children residing in this state, and 
the form to be the same as in ordi- 
nary districts,] 430 

SUPERVISORS, 
To require collector to pay money to 

commissioners, § 17, 366 

When to raise a sum equal to school 

moneys, §16, 366 

To prosecute commissioners, on no- 
tice from Superintendent, § 33, .. 371 
To divide moneys arising from gospel 

and school lots, 421 

SUPERVISORS' Cl.ERK, 
His duty in relation to apportionment 
of school moneys, § 15, 366 

SCHENECTADY, 
Apportionment of school money, 

«190, 406 

Duty of county treasurer, § 191, . • . 406 
l>uty of school commissioners, § 192, 406 

Duty of assessors, §193, 407 

Duly of trustees of school districts, 

§194 407 

Apportionment of moneys collected 

by tax, §195, 407 

To whom moneys collected by tax to 

be paid and distributed, vS 196, . . . 407 
Abstracts of assessment rolls, § 197, 408 

City how to be divided, § 198 408 

Lancaster schools, () 199, 408 

TAXES, 
Duty of board of supervisors in dela- 
tion to 366 

How voted, and for what purposes, . 377, 

418 

Limited 377, 378 

How levied and applied, where dis- 
trict is divided, §79, 380 

How apportioned, §86, 383 

Who exempt from, ^91, 384 

In what time to be assessed, § 92, . . 384 
Remedy of tenant against owner for, 

§93, 384 

Warrant for, (i 98, 385 

What real estate liable, 383 

TAX LIST, 
To be made out within one month, 

§92, 384 

Form of, 427 

Against whom n ade out, § 86, 383 

Warrant to be attached, § 98, 99, 100, 
101, 385 

TEACHERS, 
To be inspected annually, § 107,... 387 
Trustees to contract with and pay 

them, sub. 8, § 85, 382 

Form of certificate for, 443 

May be re-examined and certificate 

annulled, § 48, 49 373 

How inspected for district formed 

from two to wns, § 51, 374 



FORMS AND REGULATIONS. 



479 



Departments for educating, § 4, 418 

TOWN CLERK, 
To be clerk of commissioners, § 43,. 372 
His general duties as such clerk, .... 372 
To assemble commissioners on notice 

from county clerk, § 128, 372 

TOWN COLLECTOR, 
To pay school money to commission 

ers, ^ 17, 366 

When to pay to county treasurer, 

§ 18 366 

TREASURER OF COUNTY, 
When to apply for school moneys, 

§12 365 

To give notice to commissioners, § 13, 365 
To hold the same subject to order of 

such commissioners, § 13, 365 

Moreys remaining in his hands how 

disposed of, $ 14, 366 

When town moneys to be paid to him, 

^18, 366 

TROY. 
Four first wards a district, § 147, ... . 395 

Inspectors and trustees, § 148, 395 

Trustees to be sworn, 149, 395 

Penalty for neglect, § 150, 395 

School moneys how paid, § 151, ... 395 
School-house how repaired, §152,.. 395 
Aldermen of 5th and 6th wards, § 153, 395 

Tuition to be graduated, ^ 154, 396 

Indigent persons to be exempted, 

§154, 396 

Commissioners and inspectors how 

chosen, § 155, 396 

Districts may be set off, § 156, 396 

Schools in 1st district, §157, 396 

Taxes may be raised, § 158, 397 

TRUSTEES, 

Their consent required in altering 
district, §21, 363 

Moneys withheld from, if their report 
is defective, §22, 23, 24 368, 369 

To have notice that teacher's certifi- 
cate is to be annulled, § 48, 373 

How chosen. § 61, or appointed, 376, 380 

To call special meetings, § 63, 377 



To raise lax for proportion of school- 
house when district is divided, § 79, 380 

Tenure of office, §80,81, 380 

Forfeiture for refusal to serve, § 82, . 380 

Resignation of, § 83, 381, 425 

Their general duties & powers, § 85, 381 

To apportion taxes, § 86, 87, 88, 383 

To ascertain valuations, § 89, 90, . . . 383 
To make out tax list in one month, . 384 
To annex warrant, §98, 99, 100, 101, 385 
To commence suit when commis- 
sioners withhold money, § 103,... 386 
Their annual report, ^ 104, 105,.... 386 

To apportion fuel, § 95, 384 

How to report in districts formed in 

two or more towns, § 108, 387 

Penalty for false report, §110, 387 

To hold property of district as a cor- 
poration, ^ 111, 387 

To account to successors and district, 

§ 112, 113 388 

Forfeiture and remedy against former 

trustees, § 114, 115, 116, 388 

When to appoint collector, § 121, . . . 389 

When to sue collector, § 123, 389 

When to sue delinquent in their 

name of office. § 115, 123,... 388, 389 
Recoveries against them, how to be 

indemnified for, 438 

UTICA. 

School moneys how paid, § 204 409 

Trustees to report and account, § 205, 409 

Tax for repairs and fuel, $ 206, 409 

Schools to be established, §207,.... 410 

School moneys how paid, § 65, 410 

Former acts repealed, §69, 410 

City to be considered a town — note, 410 
VOTERS, 

Their qualifications, §60, 376 

Penalty upon those not qualified,.... 376 
List of, to be made in certain cases, 

§71 378 

WARRANT, 
How issued and renewed, $ 98, 102, 385 

Form of warrant for tax list, 427 

Form of warrant for rate bill, 427 

Effect of warrant, § 99, 100, 101,.,.. 385 




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